Julie Nicholls v. Chief Animal Welfare Inspector, 2023 ONACRB 31

Date: 2023-01-16

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

Between:

Julie Nicholls

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Panel: Susan Clarke, Vice-Chair Edgar-André Montigny, Member

For the Appellant: Julie Nicholls, self-represented For the Respondent: Joanna Chan, Counsel Inspector Ryan Nelson, Regional Supervisor Nicole Driscoll, Regional Supervisor, Tracey Lapping, and Regional Supervisor, Sarah Munoz, Animal Welfare Services

Heard By Videoconference: December 16 and 19, 2022

OVERVIEW

1Julie Nicholls, (the “appellant”), appealed to the Animal Care Review Board (the “Board”) a Notice of Decision of the Chief Animal Welfare Inspector to Keep an Animal in Care (the “Decision to Keep in Care”), issued by the Chief Animal Welfare Inspector (“respondent”) on November 2, 2022. The Decision to Keep in Care was regarding fourteen equines that had been removed on November 1, 2022 by Inspector Ryan Nelson (“Inspector Nelson”) of Animal Welfare Services (the “AWS”).

2The appellant owns 7 horses and 7 ponies (the “horses”), which she kept at a property at 128 Dairy Lane in Burk’s Falls (the “property”) leased by the appellant.¹

3AWS received a complaint that the barn on the property in which the horses were kept had been condemned by the municipality as an unsafe structure. An Order Prohibiting Use or Occupancy of Unsafe Building (the “Order Prohibiting Use”) had been issued under the Building Code, by the Corporation of the Township of Ryerson (“the municipality”) on August 5, 2022. Inspector Ryan Nelson visited the property on September 1, 2022 with the appellant present. Inspector Nelson noted that he saw the Order Prohibiting Use attached to the barn door.

4Inspector Nelson noted that, aside from the barn, there was no shelter available on the property for any of the horses. Based on this and his observations concerning the condition of the horses’ hooves (lack of farrier care), the supply of food, water and the muddy conditions of the horses’ two paddocks and a round pen, Inspector Nelson issued a Compliance Order (“CO #1”) pursuant to s. 30 of the Provincial Animal Welfare Services Act, 2019, (the “PAWS Act”)² on September 1, 2022 to the appellant with a compliance date of September 28, 2022.

5There were further visits to the property to conduct compliance checks of CO #!1 either by Inspector Ryan or by Regional Inspector Nicole Driscoll (Regional Inspector Driscoll), on:

1. September 29, 2022;
2. October 18, 2022;

6On every visit it was confirmed that the situation had not changed. In particular; the various inspections revealed that the paddocks were wet and muddy and that no shelter was available. This resulted in the issuance of a second Compliance Order (“CO #2”) on October 21, 2022, requiring the appellant to, among other things, provide sanitary living conditions free of mud and standing pools of water and to provide dry resting and sleeping areas with clean dry bedding by October 25, 2022.

7There were further visits to the property to conduct compliance checks of both CO #1 and CO #2 by either Inspector Ryan and/or by Regional Inspector Driscoll, on:

3. October 25, 2022
4. October 30, 2022;

8A third compliance Order (CO #3) was issued on October 28, 2022 compelling the appellant to “ensure horses are provided with adequate food daily to maintain health and vigor “.

9On November 1, 2022 Inspector Nelson contacted the municipality and confirmed that the “Order Prohibiting Use” was still in effect against the barn on the property meaning that the barn was still not available as a shelter for the appellant’s horses. Inspector Nelson and Regional Inspector Tracy Lapping (Regional Inspector Lapping) inspected the property and noted that the conditions had not been ameliorated. The appellant insisted that the animals could be sheltered in the barn, despite the “Order Prohibiting Use” still in place.

10Inspector Nelson contacted Dr. Bruce Robertson (“Dr. Robertson”), a consulting veterinarian, regarding the living conditions of the horses, and conducted a remote videoconference with him from the property on November 1, 2022. Dr. Robertson issued a Certificate of a Veterinarian advising that removal of all 14 horses from the property was necessary to relieve them of distress. Consequently, on November 1, 2022, Inspector Nelson issued a Notice of Removal pursuant to s. 31(1) of the PAWS Act and the horses were removed from the property the same day.

11On Nov 2, 2022 Regional Supervisor Sarah Munoz (“Regional Supervisor Munoz”), delegated as the Chief Animal Welfare Inspector, issued a Notice of Decision to Keep in Care (“Decision to Keep in Care”) pursuant to s. 31(6) of the PAWS Act, for all 14 horses removed from the property.

ISSUE IN DISPUTE

12The issue in dispute in this matter is limited to the following:

1. Should the horses removed from the property on November 1, 2022 and subject to a Decision to Keep in Care, issued on November 2, 2022 be returned to the appellant?³

RESULT

13For the reasons that follow, the Board:

1. Dismisses the appellant’s appeal for the return of the horses, and.
2. Confirms the Decision to Keep in Care, issued November 2, 2022.

LAW AND ANALYSIS

14Distress is defined in s.1(1) of the PAWS Act, as 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.

15Section 31(6) of the PAWS Act provides that the Chief Animal Welfare Inspector may decide to keep an animal that was removed under subsection 31(1) in its care if, (a) the Chief Animal Welfare Inspector determines it is necessary to relieve the animal’s distress; or (b) the Chief Animal Welfare Inspector has reasonable grounds to believe that the animal may be placed in distress if returned to its owner or custodian

RESPONDENT’S SUBMISSIONS

16The respondent also referred the Board to O. Reg 444/19 Standards of Care and Administrative Requirements,⁴ (“O. Reg 444/19”), which provides minimum care standards, citing s. 3 (1) regarding adequate and appropriate food and water; s.3 (3) care necessary for general welfare; s.3(5) adequate and appropriate resting and sleeping areas and s.3(7) regarding the need for a pen or other enclosed structure in which animals are kept, to be in good repair.

17The respondent also relied upon the National Farm Animal Care Council’s Equine Code of Practice,⁵ which among other things, outlines, at s. 2.1, the need for minimum access to mud-free areas to lie down, and at s. 2.1.2, the need for a natural or man-made shelter for protection from extreme conditions. The Equine Code of Practice, while not law, is published by the Canadian Agri-Food Research Council was relied upon as reflecting “reasonable and generally accepted practices of agricultural animal care, management or husbandry” as described in s. 13(2) of the PAWS Act.

18The respondent submitted that the evidence of Regional Supervisors Lapping and Driscoll, and Inspector Nelson concerning the condition of the appellant’s horses, in particular the wet and muddy conditions of their paddocks and the lack of adequate shelter and dry space for resting, as well as evidence of rain rot and mud fever visible on the horses coats, was sufficient for Regional Supervisor Munoz to find that the living conditions of the horses did not meet the minimum standards outlined in O. Reg. 444/19 or the Equine Code of Practice, and further met the definition of distress in s. 1(1) of the PAWS Act, specifically clause (a) where the horses are in a state of being in distress where they are in need of proper shelter. The evidence provided by the respondent’s witnesses confirmed that the conditions at the property had put the horses in distress.

19The respondent submitted that the appellant was given several opportunities to comply with the Orders regarding the living conditions of the horses but that she failed to do so. Although the respondent noted that she intended to build lean-tos on the property to shelter the horses this was never done. Finally, based upon the Veterinarian’s Certificate of Dr. Robertson advising that removal was necessary to alleviate the horses’ distress, Inspector Nelson removed the fourteen horses on November 1, 2022, pursuant to clauses 31(1)(a) and (c) of the PAWS Act.

20The respondent also submitted that it was reasonable for Regional Supervisor to decide to keep the animals removed because she had grounds to believe that the horses would be placed in distress if returned to the appellant because the appellant had failed to comply with the COs over several months and there was no indication that she intended to comply as of the date of the hearing. The respondent reminded the Board that the Order Prohibiting Use of the barn has been confirmed as still in place.

APPELLANT’S SUBMISSIONS

21The appellant made two key submissions. First, the appellant submitted that the horses were never in distress, so they would not be placed in distress if returned to her now. Second, the appellant submitted that shelter was available for the horses given that, in her opinion, it was possible to use the barn on the property, since she was of the opinion that the Order Prohibiting Use was invalid. To support her second argument, the appellant relied on an e-mail from the Building Code Commission to support her position.

22The appellant argued throughout that there was no need to ameliorate the conditions of her horses to alleviate distress, because the horses were never in distress while in her care. She argued that given there was nothing wrong with the conditions in which the horses were kept, she did not have to take any steps to change those conditions. Therefore, she stated that the horses could be returned to the same conditions without any risk of their being placed in distress.

23In cross-examination however, the appellant acknowledged that the e-mail from the Building Commission, was the sole evidence she had to prove that the Order to Prohibit Use was not valid. The respondent pointed out the e-mail in question merely informed the appellant that the Building Code Commission was not the proper avenue to appeal the Order in question, and that she had been directed to appeal to Superior Court. The Board agrees with the respondent’s interpretation of the e-mail.

24In her closing submissions, the appellant acknowledged that she understood that the Board had no jurisdiction to vary or overturn the Order to Prohibit Use of the barn. She also acknowledged that the Board could not condone the use of a barn subject to an Order to Prohibit Use as a shelter for the horses.

25On cross-examination and in her closing arguments, the appellant also confirmed that she had no other location to bring the horses to. The appellant further mentioned that even if she had a new location for her horses, she would not report it, since she refused to have AWS inspect the property. When asked by the panel to confirm this statement later, the appellant clarified that she meant that given her current experiences she would not want to involve the AWS any more than necessary.

26The appellant cross-examined Regional Supervisor Driscoll, Regional Supervisor Lapping and Inspector Nelson on their affidavits. For the most part, her questions focused on challenging the inspectors’ finding that the horses were actually in distress when removed from the property.

27Throughout cross examination, Regional Supervisors Driscoll and Lapping and Inspector Nelson maintained their assessment that the horses were in distress. When the appellant showed Regional Supervisor Driscoll photos of one of her horses and questioned Inspector Nelson’s conclusions about the condition of the horse, Regional Supervisor Driscoll was able to point to markings, discolorations, and/or mud on the horse and explain that these markings were the result of the horses having to lie down in mud as they have no appropriate dry resting places. She submitted that these markings were therefore evidence of distress.

28Dr. Robertson also confirmed on cross-examination that the conditions of the horses that he noted, such as rain rot and mud fever, were likely the result of extended exposure to wet and muddy conditions.

29Regional Supervisor Driscoll and Inspector Nelson confirmed on cross-examination that over the course of their inspections in September and October they found no change in the circumstances of the horses. In particular, they confirmed that the paddocks remained wet and muddy and that the horses showed signs of poor health conditions, such as rain rot and mud fever that were often the consequences of long-term exposure to wet conditions.

30The Board disagrees with the appellant’s arguments. The fact that the only shelter available on the property was, and continues to be, subject to an Order Prohibiting Use presents a major obstacle to any attempt to return the horses to the property. The Board has no jurisdiction to overturn that Order. For that reason, the Board could not order the return of the horses to a location where suitable shelter is not available. The lack of shelter alone is sufficient to establish that returning the horses to the appellant and the property would place the horses in distress.

31Shelter, however, is not the only issue. The respondent has demonstrated that other issues, such as the ongoing wet conditions of the paddocks on the property, as well as concerns about the horses’ access to proper food and water, noted in CO #1, CO #2 and CO #3, have also placed the horses in distress pursuant to s.1(1) of the PAWS Act.⁶ This evidence supports the finding that the respondent has reasonable grounds to believe that the animals will be placed in distress if returned to the appellant. Therefore, even if the Order Prohibiting Use of the barn on the property were to be vacated or dismissed, it would not necessarily follow that the horses could be returned. We accept the respondent’s submission that return of the horses was conditional on all the COs being addressed by the appellant.

32In conclusion, the Board finds that the horses would be placed in a position of distress if they were to be returned to the appellant’s care. At minimum she has not provided the horses with proper viable shelter, has not improved the ground conditions in the paddocks and has not made any plans to make these changes.

ORDER

33Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, this appeal is dismissed.

Footnotes

1. 1The appellant does not live at the Property.
2. 2S.O. 2019, Ch. 13
3. 3On November 23 2022 the appellant filed a Notice of Motion requesting that she be permitted to appeal the Notice of Removal dated November 1, 2022, The Motion included an appeal of a number of compliance orders, dated September 1, October 21, and October 28, 2022, as well as the Notice of Non-Compliance dated October 28, 2022. The Board found that it had no jurisdiction to hear an appeal of a Non-Compliance Order, there was no jurisdiction to accept the appeal of the Notice of Removal or the Appeal of the Compliance Orders, since all were submitted beyond the 5-business day appeal period pursuant to s. 38 of the PAWS Act.
4. 4O. Reg 444/119 Standards of Care and Administrative Requirements, made under the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
5. 5National Farm Animal Care Council, Code of Practice for the Care and Handling of Equines, (Canada, 2013) https://www.nfacc.ca/pdfs/codes/equine_code_of_practice.pdf
6. 6See paragraph 25 for a full definition.