Animal Care Review Board
Appeals under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13
Between:
Samara Flaro
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION
Adjudicator: Matthew M. Létourneau, Member
Appearances:
For the Appellant: Samara Flaro Edwin Boeve, Counsel
For the Respondent: Jessica Fiore, Counsel Alanna Thompson, Counsel Connie Mallory, Regional Supervisor Scott Sylvias, Animal Welfare Services Ellie Robinson, Law Clerk
Heard: By Videoconference on October 6, 7, 26, and 28, 2022, followed by written closing submissions
OVERVIEW
1The appellant, Samara Flaro, owns 3 Golden Retrievers, 1 rabbit, 1 cat and 3 Daschunds. Further to complaints received by the Animal Welfare Service’s (AWS) in 2022 regarding the conditions of care the animals were being kept under, it launched an investigation on August 23, 2022 and attended at the appellant’s residence to determine if the animals were in distress. Further to this investigation, the appellant’s animals listed above were removed, except for 1 cat, due to a finding of distress relating to the environment and care provided to the animals by the appellant.
2The appellant appealed the respondent’s decision to remove her animals on August 23, 2022, she appealed the August 30, 2022 statement of account issued to her for care of the animals, and she appealed the Chief Animal Welfare Inspector’s (CAWI’s) August 31, 2022 decision to keep the animals in its care due to a concern that they would be placed in continued distress if returned to her.
3The appellant seeks the return of her animals. She requests that the Animal Care Review Board (the Board) revoke the decisions to remove and to keep her animals, and to revoke the statement of account or to vary it due to her limited financial situation as a person on Ontario Disability Support Program. The respondent claims that its decisions to remove and to keep the animals were properly made and that the remedies sought by the appellant should be denied and it requests its decisions to be confirmed by the Board.
4The parties attended the videoconference hearing for Board file numbers 14256, 14257, and 14258/ACRB on October 6, 7, 26, and 28, 2022. These matters were heard jointly as previously ordered by the Board.
ISSUES IN DISPUTE
5The issues to be decided in this matter are as follows:
a. Did the AWS inspectors who removed the animals have reasonable grounds for believing they were in distress?
b. Should the Board order the animals be returned to the appellant?
c. Is the appellant liable for the amount specified in the statement of account?
RESULT
6On the evidence, I find that there are no reasonable grounds to find that the animals were in distress on August 23, 2022. The decisions to remove and to keep the animals are revoked. The appellant is not liable for the statement of account, as it too is revoked. I order her animals returned to her.
LAW
7Subsection 31(1) of the Provincial Animal Welfare Services Act, 2019 (“PAWS Act”)1 gives an animal welfare inspector the power to remove an animal in distress from a place for the “purpose of providing it with necessaries to relieve its distress.”
8The definition of distress under s. 1(1) of the PAWS Act is:
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.
9Sections 31(6)(a) and (b)(i) of the PAWS Act gives the respondent the power to decide to keep in its care an animal that was removed to alleviate distress if it is necessary to relieve the animal’s distress, or if the respondent has reasonable grounds to believe that an animal will be placed in distress if returned to its owner or custodian.
10If the AWS removed an animal or the CAWI made a decision to keep an animal in its care, the CAWI may serve a statement of account on the owner or custodian of the animals by virtue of s. 35(1) of the PAWS Act.
11The Board has the authority after a hearing, by virtue of s. 38(9) of the PAWS Act to:
Confirm, revoke or modify an order made under section 30;
Order that an animal removed under s. 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;
Confirm, revoke or vary a statement of account served under subsection 35(1). . .
ANALYSIS
12For the reasons that follow, I find that the appellant’s animals were not in a state of distress as defined under the PAWS Act on August 23, 2022. I revoke the order to remove the animals. I further find that there were no reasonable grounds to believe that the animals would be placed in distress if returned to the appellant. I revoke the order to keep the animals. Given these findings, the statement of account is also revoked.
The Initial Complaints Leading to AWS’s Investigation
13Complaints made to the AWS initially raised concerns of distress. Josiah Roche, a residential property evaluator visiting the appellant’s home, and, later, the appellant’s neighbour, Ashley Lusty, contacted the AWS with their concerns regarding the appellant’s animals.
14Mr. Roche was inspecting the home to value it for his company to offer to purchase it. He visited the entire home and alleged that Golden Retrievers were found in the basement during his visit. He claimed in his complaint that there may have been two dogs “crammed” in one crate in the basement and reported a strong smell of ammonia. The AWS took these complaints seriously and considered this when deciding to investigate the appellant. The evidence itself was vague and unreliable. I did not find Mr. Roche’s evidence regarding the basement to be reliable. On cross-examination, he confirmed he was in the basement for “about 30 seconds.” He said it smelled as bad as anything he had ever smelled and saw what looked like two dogs in a crate but admitted he did not spend enough time to verify this or take any pictures that could help confirm what he saw. Mr. Roche made exaggerated claims that did not coincide with the appellant’s observations. Mr. Roche stated that the smell in the basement was, “that of the smell of a Mumbai slum which I smelled during my visits there.” Mr. Touchette spoke of a “faint smell.”
15Dr. Robertson, the veterinarian who attend on the day the AWS investigated the appellant’s home, tested the ammonia levels and determined there was an odour present, but found the levels were below a clear level of danger. He did note that there is not a specific standard that must be respected. There was also no other evidence to corroborate that there were ever two dogs in one crate, so I do not find that allegation to be substantiated. Mr. Roche also reported that the appellant contacted his office after his visit with a complaint, due to his conduct at the house Mr. Roche stated that the appellant was upset with his claim that her house was less valued than what she had hoped. The appellant stated that Mr. Roche was not pleasant with her verbally. His complaint to the AWS followed the complaint of the appellant. I find that this interpersonal conflict reduces the credibility of Mr. Roche’s observations generally and that his claims were susceptible to exaggeration given the verbal dispute he had with the appellant regarding the sale of her home.
16The appellant’s neighbour, Ms. Lusty, also made complaints to AWS that she heard dogs howling and claimed that they were in distress in the months leading up to the investigation. Ms. Lusty did not provide many direct observations of distress of the animals as she was not present in the appellant’s home prior to the investigation and did not see these animals, nor their state of wellness. She recounted that there has been tension between her and the appellant and the appellant’s son for some time, including ten or more calls to the police regarding the appellant. I find there was a clear interpersonal conflict between her, her husband, and the appellant’s family. Also, Ms. Lusty did not attend the appellant’s household at any the time leading up to the investigation and did not make direct observations of the conditions the dogs were under. She did not have pictures, or video evidence, of any signs that the animals were in distress. She provided reports that, while the winter was relatively quiet, the summer of 2022 was noisy, and she stated that the dogs were disruptive.
17I understand that these reports would lead the AWS inspectors to choose to investigate. I do not find that they help show any reasonable grounds for the inspectors to find distress regarding the animals. I give these complaints limited weight in the overall analysis of the respondent’s evidence in claiming the appellant’s animals were in distress.
No Distress Prior to Investigation: Appellant’s Witnesses
18The appellant’s own testimony claimed a general respect of the care of these animals prior to the investigation date of August 23, 2022. The appellant, her mother, her son, her son’s girlfriend, her lawyer, and two friends all saw the appellant care for her animals and provided testimony on the care of her animals in or around her home prior to the investigation. They all consistently provided clear, firsthand observations and evidence to the Board of proper care. These lay witnesses are not experts on animal care, but their evidence was consistent that the animals were receiving regular care while with the appellant. I find that the animals were provided care at a level that did not place them in distress prior to the investigation.
19The appellant’s witnesses all detailed how the dogs slept in the house, on the couches or in the appellant’s bed. They were given water, food, and shelter as required, daily. The testimony of the appellant’s witnesses all confirmed that the animals were treated with care. I found the accounts to be plausible, as the appellant’s day to day routine was to stay at home, meet her mother or her friends. Her son and his girlfriend were present for much of the time and cared for the animals alongside the appellant. Austin Flaro, the appellant’s son, said he would help feed and water the animals and would let them in and out of the enclosure in the yard when he came home or before leaving to ensure they did not spend too long outside. His girlfriend, Abagail, stated that while she lived there for a time prior to the investigation, the Golden Retrievers lived upstairs on the main floor and stayed on the furniture to sleep, or roamed and slept in the common areas. The friends who visited all stated that the appellant treated her animals well inside the home, or when brining them out in the neighbourhood. The appellant’s mother stated that she would have said something if there was any distress, as she has a lot of concern for animals, but saw no signs of distress in her regular visits. The appellant’s lawyer at the time, Adrian Touchette, attended the premises prior to the investigation and did not have any concerns regarding the care of the animals at that time, nor later, on the day of the investigation.
20The appellant’s witnesses unanimously observed that the animals were clean, well fed, happy, watered, provided shelter, free of psychological for physical harm and were well cared for. There was no sign of abuse to the animals or mistreatment from their perspective. It was clear in cross-examination that the lay witnesses did not know all of the rules, regulations, nor codes of conduct for care of animals, for example regarding lengths of tethers or when shelter must be provided for animals kept outside. However, they demonstrated that the level of care provided to the animals was well intentioned, consistent and as good as they believed the appellant could provide.
21I find that prior to the date of the investigation, the lay witnesses provided convincing evidence of proper care and a strong presumption that there was no distress up to the date of the investigation. On the day of the investigation, the appellant, her mother and son, as well as Mr. Touchette did not agree that there were signs of distress, as submitted by the AWS. The views on the state of care of the animals on the date of the investigation differs greatly between the parties.
Warrant Obtained Due to AWS Concerns
22The investigators obtained a warrant to investigate the premises and the CAWI approved attending on August 23, 2022. Due to previous interactions with the appellant, they attended in the presence of police officers, as well as a locksmith. They were concerned that the appellant would act in an aggressive fashion. A warrant was granted by the Superior Court of Ontario and the plans for the investigation were made by inspectors Lamb and Baker in consultation with the CAWI.
The Investigation Day of August 23, 2022
23The respondent acted upon the receipt of the complaint of Mr. Roche and Ms. Lusty. Inspectors Lamb and Baker reviewed these complaints and previous interactions with the appellant the year previous regarding different animals. They concluded that an investigation was necessary, rather than a visit to educate or provide compliance options. The observations they made on the day of the investigation constitutes the main evidence to support the removal and decision to that the AWS and CAWI later arrived at. They a concern for the shelter and environmental conditions the animals were kept in, which were deemed to cause distress by the Chief Animal Welfare Inspector. The inspectors provided detailed notes and observations regarding the inspection on that day and outlined the grounds for believing there the animals were in distress.
24The investigation was a surprise visit to the appellant and was conducted without previous compliance orders being made in relation to these animals, nor regarding the specific concerns that ultimately led to their removal. The appellant admitted that she panicked on the day in the morning upon the arrival of the inspectors. She blocked entry with the help of her son, who played loud music and physically held the front door shut, while yelling and swearing loudly. The appellant and her son shouted back at the investigators stating they were not welcome to come in, that the appellant was in pyjamas, that she needed to go to the washroom and then, needed to call her lawyer, Mr. Touchette. The inspectors chose not to force entry, took some pictures from the exterior, but waited for Mr. Touchette to arrive an hour or so later before entering the home. I note that his presence calmed things to a degree where the inspectors were given entry to the home and the investigation took place throughout the entire residence and backyard. There was testimony, pictures taken by the AWS inspectors and video footage by Austin Flaro to provide evidence of the investigation, including interpersonal conflict between the people present.
25Mr. Touchette stated that he did not share the concerns of the animal welfare inspectors and the veterinarian regarding distress on that day of the investigation. Mr. Touchette was consistent in saying that he corrected the inspectors on several occasions where they verbally noted concern, such as when he double checked a water bowl to note that it was damp, rather than “bone dry,” that there was a window open at a time where a Dachshund was in the appellant’s car, that there was a faint smell of ammonia in the basement, rather than an extreme smell.
26The veterinarian, Dr. Robertson, who attended on the day of the investigation of August 23, 2022 formed the opinion and wrote a report dated September 7, 2022 stating that the living conditions of the appellant’s six dogs and one rabbit caused the animals to be in distress as defined by the PAWS Act. The evidence he presented at the hearing, the veterinarian report he submitted on September 7, 2022 and the medical information from the Kingston Humane Society of August 31, 2022 confirmed that the animals themselves were not showing signs of medical distress, nor any disease. They appeared to have matted or dirty fur in some cases, but I do not find that there was medical evidence of physical or psychological distress.
27Instead, it appears that Dr. Robertson agreed to the removal of the animals’ given concerns that the environment was improper or unsafe. He found that the dogs were primarily housed in the basement on the day of the investigation and that this space was too crowded, dirty or unfit. He was concerned that they were kept here for long periods. He had concerns with unsanitary conditions, poor air quality, lack of sufficient food and water and harmful substances in proximity. He was also concerned that outside in the back of the property, the tethers on several dogs were too short to be regulation, the tarp shelter was not covering the dogs from the elements, water was muddy and out of reach, or was lacking. He found that the rabbit was housed in a small crate that was too crowded, unsanitary and lacked proper food or water. One Dachshund was found in the room of the appellant’s son under blankets in a small crate. Another was observed to be in the appellant’s car and he had concerns for how long it was in a hot car.
28The respondent alleged specific deficiencies with the care of the animals, the shelter and environment that all led to its decision to remove and keep the animals. Notably, the respondent alleged that the tethers for the dogs kept outdoors were too short, outside tarps were not directly over the dogs on the day of the investigation, muddy drinking water outside, water out of reach outside, there was uncleanliness in the basement where dogs were found, cans of paint in the basement, which the dogs could access, crowding of the animals in the basement, a small crate for the rabbit, a covered moveable carrier for a Dachshund in the appellant’s son’s room restricting its air quality, and poor air quality downstairs in the basement.
29The AWS Inspectors provided their observations of the day of the investigation and pictures that were taken of the house and animals. They detailed the concerns they had, and discussed with Dr. Robertson, in person, and throughout the day to the CAWI by telephone. Their observations led Dr. Robertson to make his finding to support the AWS’s decision to remove the animals, for the reasons noted by Dr. Robertson.
30In cross-examination and in the medical reports submitted, it appears that Dr. Robertson found the animals were in general good health, being of good weight, good hydration, proper heath and free of distressing medical signs such as illnesses. Their behaviour was generally good (e.g. comments such as “green” behaviour or “friendly” throughout the report). During the removal and at the kennel afterwards, the testimony revealed that the dogs had a good disposition, except for one moment when they were brought up to the main floor and they appeared unsure from their surroundings and laid flat on the ground, in what the inspectors said was a concerning “pancake” posture.
31I find it striking that despite a thorough investigation by the AWS inspectors, Dr. Robertson did not conclude that the animals were ill, lacked nourishment, and there was no physical or psychological harm present that would qualify as distress. I find that the concerns were mostly sheltering issues that were irregular or unsafe in his view.
32If I find the sheltering was deficient, it could be a basis to find the animals were or would be in distress if returned. If not, the animals should be returned. In analyzing the shelter and quality of housing, I have considered the definition of “distress” under the PAWS Act, as well as the Standards of Care and Administrative Requirements2 and the evidence of the parties in this regard.
No Reasonable Grounds of Distress on Day of Investigation
33In considering the evidence on the day of the investigation by the Animal Welfare Inspectors, I find that there are not reasonable grounds for finding that the animals were in distress on August 23, 2022. I can understand the inspectors’ initial concerns that led to the investigation, given their past experience in removing animals from the appellant’s home, and the complaints they received by Mr. Roche and Ms. Lusty regarding these new animals (i.e. reports of dogs crammed into crates together and sounds of abuse or mistreatment generally).
34However, my view of the evidence from the day of the investigation does not ground a finding of distress as defined by the PAWS Act and its regulations. I find that the animals were all given access to clean water on a regular basis, sufficient food, and appropriate shelter. There were no signs of abuse, hardship, privation or neglect. I find that the appellant’s animals had care, water, food and shelter offered to them to a level that indicates that they were not in distress. They were supervised consistently and had constant access to the home, even if they were sometimes in the basement or backyard. They were not injured, sick, in pain, or suffering. There were signs of muddy fur, some urine and feces and dirty water outside, but I cannot find that these signs rose to the level of distress on their own. There were no signs that the water inside the home was dirty, nor that the animals were dehydrated or showing signs of diseases that would demonstrate a lack of potable water. The weather was rainy on the day of the investigation and the ground was muddy, so some dirt in the fur of the dogs that went outside is not out of the ordinary. If it was for a prolonged period or at an undue level, I would expect to see some associated signs of illness or pictures of some harm, but there were not any confirmed diseases linked to their care or environment. Also, the evidence prior to the investigation was uniquely that the dogs were tended too, fed and watered. There was also evidence that the appellant bathed one of one of the dogs on the day of the investigation showing that she was mindful of their general appearance and hygiene.
35The chaotic nature of the day also leads me to conclude that the events of that day were not all representative of the general care the animals received. The appellant was adamant that she cared for her animals on a regular basis. She claimed that the dogs were only in the basement or outside because she placed them there that morning to control them to allow for the investigation to take place and because of the chaos that ensued in the morning following the surprise investigation by the AWS inspectors, the commotion at the door, and the reactive state she was in. The AWS inspectors and Dr. Robertson claimed that several dogs were primarily kept in the basement, but I do not have evidence that they were kept there for more than a short duration. The same is true for the backyard.
36I find that the AWS’s decision to remove the animals was based on assumptions the inspectors and the veterinarian made regarding certain signs of concern that they had. I find that they did not take into the entire context of the care provided for the animals. I find that the inspectors did not consider that the appellant was present at all times and could adjust, improve or correct issues of concern. The concerns held were also diminished in my view given that they could be directly attributed to the nature of the investigation instead of a regular pattern of neglect or lack of care. The appellant stated the dogs were placed into basement and backyard because of the surprise visit of the investigators. I do not have evidence to show that this was not the case, but the appellant’s witnesses all testified that it was true that they did not remain in the basement or outside. I accept that the influence of the chaos that ensued on the day of the inspection adds a likelihood of inaccurate inferences on the observations on that day by the AWS inspectors.
37I do not find previous interactions between the appellant and AWS to be relevant to this proceeding. These previous investigations were for a different purpose, including weight and food management, which were not key issues resulting from the August 23, 2022 inspection. Given the lack of any attempt to first seek compliance before this investigation on the shelter and conditions, I can only compare the situation with the appellant’s witnesses accounts, along with the complaint of Mr. Roche’s visit and Ms. Lusty’s complaint. The previous interactions with AWS are too remote and removed from the issues here to be considered compliance orders or efforts that could help to confirm that there was indeed distress, as argued by the respondent at the hearing.
38Despite the conclusions of the investigators that led to the decisions to remove the appellant’s animals, the evidence at the hearing confirmed that the animals were all hydrated, at a healthy weight and concluded they were generally in good health.
39I will now review some of the specific allegations that formed the basis for AWS to find the animals in distress.
40Regarding the allegations that the dogs outside had muddy water in their bowls, I find that the evidence shows that the animals all had “access to water.” The appellant’s witnesses confirmed that fresh water was available to the animals. There was a dry bowl on the day of the inspection according to the inspectors, but Mr. Touchette placed a finger in the bowl and corrected the inspectors to say that it was damp and had been emptied recently. It is plausible that the dogs drank the water in the bowl, but the important finding in my view is that a bowl was present and the appellant was available to fill it, ensuring that water was available. This is corroborated by the fact that the dogs were later found by the veterinarian to be adequately hydrated. The AWS inspectors and the veterinarian were concerned that there was a dirty bowl outside. While a dirty bowl of water could cause distress if it was the only source of water for a prolonged period, I do not find that this was the case in this matter. There were water bowls in the kitchen and downstairs in the basement that had recently been drank from. It was also raining on the day of the investigation and the bowl was left outside. The appellant, however, was present to change the water, a practice she claimed to maintain. This is consistent with what I heard from the other witnesses observing her in her home leading up to the investigation and the general hydration of the animals. I cannot confirm the AWS’s assumption that this bowl of water was a cause for distress, as I cannot confirm the assumption that it was never changed by the appellant. It is just as fair to assume that it was dirty and had not been changed due to the chaotic arrival of the investigators that morning. Given the bowls inside the home, the practice of the appellant to water the dogs and their general health, I find that the dogs had access to water in the normal course and were not in distress for this reason on August 23, 2022.
41I also conclude that there was food available to all the animals given their apparent health, weight, and based on the testimony I heard. Inspector Lamb stated that the dogs ate ravenously when presented with food. However, this in and of itself does not demonstrate distress. Dr. Robertson found that the animals were a healthy weight and I find that this corroborates the appellant’s witnesses’ testimony of seeing the animals fed regularly, instead of the implication that food was never available. Pictures of food in the home were provided at the hearing and the appellant and her son both testified that they fed the animals regularly.
42There was also no evidence of any injuries, pus, infections, or immediate need for medication on the date of the inspection. I find, therefore, that there was no urgent need to tend to any medical issues for the animals.
43Regarding shelter, the interior of the home was generally clean by all reports, including the living room, the kitchen, and the bedrooms. There was one Dachshund found under covers in Austin Flaro’s bedroom in a small crate. He admitted he hid the animal in a rash attempt to hide it from the inspectors and apologized for this action. I find that this was a one-off occurrence due to the investigation.
44The rabbit was allegedly kept in a crowded and dirty crate. There were signs of uncleanliness in the basement, but the degree to which it was unclean was contested and it was not made clear to me that the uncleanliness that was present was beyond a level of safety or caused distress. The pictures were not conclusive in this regard and it appeared that there was some room for the animal to move and to be fed and watered, even if one bowl was overturned in the picture. The rabbit was also verified to be in good health in Dr. Robertson’s testimony. It was also being supervised by those present in the home and I cannot find that it was in distress. I cannot conclude that the rabbit was in distress based on the picture and the assumptions made by the investigators.
45Outside, there was the semblance of a shelter built with tarps that Austin and Ms. Flaro claim was to keep the rain and cold off. Photos demonstrated that the shelter was elaborate, but that on the day of the investigation, the tethers were not long enough to allow the dogs to each find their way under the cover. I do note that Ms. Flaro is seen in the pictures in close enough proximity to assist and testified she was home every day.
46The respondent placed much emphasis on the lack of suitable shelter outside, the state of the yard, the muddy water and the short tethers outside and claimed this was a violation of the Regulation. To find that the backyard was deficient or violated the Regulation, I would have to find that the dogs were “kept outdoors.” I find that the dogs were not regularly “kept outdoors” as defined by the Regulation. The appellant does not work and was regularly at home. Her son and his girlfriend assisted on a regular basis to care for the animals. On the day of the investigation, the appellant was in the pictures taken by the inspectors, meaning that she was present. I cannot conclusively find that the appellant’s animals were outside for more than 60 minutes at a time, which is a criterion for finding that they are kept outdoors. As such, I find that the Regulation’s requirements at ss. 4.1 to 4.5 do not apply to the appellant’s animals as alleged by the respondent.
47Regarding allegations of substandard shelter, I find that the respondent’s evidence does not substantiate these claims and does not meet the definitions in the Regulation. For example, I do not find that the dogs were kept outside as per the Regulation. I cannot conclude that the outside shelter was causing, nor would cause distress due to the tarps, the available space, or the tether length. If the animals were returned, Ms. Flaro or Austin Flaro would continue to be available to let the dogs enter the home and I do not have conclusive evidence to support a finding to the contrary further to the investigation of August 23, 2022 and the hearing testimony of all the witnesses.
48Regarding the basement in the home, the appellant’s witnesses state that the dogs were not generally down in the basement. The respondent was adamant that the basement was not a healthy environment, due to a smell of ammonia and there were cans of paint and toxic materials present. The appellant’s witnesses said there was a faint smell, while the respondent’s witnesses ranged from saying it was a strong smell to the worst smell ever smelled. I find that Dr. Robertson’s evidence was clear that the ammonia level was low to moderate. Even if the level was higher than normal, there is no defined level in the Regulation and I cannot conclude that the level was causing distress. Further, I do not find that the animals were regularly down in the basement, and they did not show medical signs of over exposures. I find that there was no environmental cause of distress for the animals from the basement.
49Where the inspectors observed a smell of urine on the fur or dirty fur, I can only conclude that the dogs were all in good health as Dr. Robertson found no obvious medical issues with the animals. The inspectors and the appellant all confirmed that dogs were reactive and did not show signs of psychological distress.
50The investigators observed a Dachshund in the car during the removal of the animals, which they claimed was a long period of having a dog in the car. They also said that went they went to remove the dog, the appellant placed a stranglehold on the dog and held it to the point of injuring it. The evidence regarding observing a Dachshund in a hot car in the driveway at the time the inspectors began removing the animals differed between the parties and their witnesses. Mr. Touchette provided testimony that he entered the vehicle, and it did not feel that warm, despite wearing a suit. He added that the windows and doors were open for part of the time. There were varying accounts between the witnesses regarding the length and positioning of the dog in the car. I cannot conclude based on the evidence presented that the appellant mishandled her Dachshund in the car. The veterinarian report of August 31, 2022 specifically assessed this dog for signs of crushing, but there were no medical signs of being crushed in her hands, nor overexposed to heat.
51Overall, I find that it was not reasonable to find the animals were in a state of distress prior to, nor on the day of the investigation. I find that the animals were fed, watered, free of disease, not showing signs of psychological harm, neglect and had rather, they had access to shelter and an environment that did not cause distress.
The Board Revokes the Decision to Keep
52Regarding the decision to keep, I find that the evidence does not support a finding that there were sufficient grounds to believe that the animals would be placed in distress if returned to the appellant such that the respondent’s decision to keep should be confirmed.
53Connie Mallory, acting CAWI, testified regarding her decision to remove the appellant’s animals and her guidance in the decision to keep them. She spoke to inspector Baker before, during, and after the investigation of August 23, 2023.
54She testified that she shared inspector Baker’s concerns about the investigation, specifically regarding the appellant’s volatile behaviour. She was fully briefed and supportive of the plan to obtain a warrant, attend with a locksmith, and the police. She was briefed throughout the day and gave directions such as not using force to gain entry, but to wait for the appellant’s lawyer to arrive.
55The Chief Animal Welfare Inspector had a debrief meeting after the investigation with inspectors Baker, Lamb, Goettling and Dr. Robertson. At this meeting, Ms. Mallory considered the following findings:
a. The dogs were wet and muddy and it was assumed they were kept overnight;
b. The tether on the Golden Retriever outside upon arrival was too short for being left unattended;
c. There were two Dachshunds left under the tarp in the backyard, which left a small, wet and muddy space with muddied water only to drink;
d. The dogs appear to have been moved inside by the appellant during the inspection only, but it was assumed they stayed outside based on the complaints received and the inspectors’ observations on the day of the investigation;
e. The rabbit was in a small area with urine and feces in the crate;
f. There were 5 dogs in the basement, close to paint cans and other materials and debris, including newspaper covering what was assumed to be urine and feces; and
g. There was a Dachshund in a small crate covered by blankets in the appellant’s son’s room.
56Ms. Mallory signed the certificate to keep the animals in the respondent’s care given the synopsis provided by inspector Baker and endorsed by Dr. Robertson. She did not review photos, notes, nor any other documents at this meeting or prior to making her decision to keep the animals in care.
57On August 26, 2022, Ms. Mallory issued a decision to keep the animals in the respondent’s care because she found reasonable grounds for distress as defined at s. 3 of the Regulation. Specifically, Ms. Mallory testified that:
a. The water provided for the animals by the appellant was insufficient;
b. There was undue psychological hardship on the animals because the environment was stressful, including crowding, uncleanliness and lack of care;
c. The animals were neglected by being left in the basement or not cared for, and there was a history with the appellant which led her to believe the animals would be in distress should they be returned due to deficient standards of care;
d. The environment was deficient in having properly organized space, such as limited space for the rabbit, proximity to paint cans in the basement, insufficient area under the tarps, small enclosures, dirty kennels; and
e. There was little evidence to show that the appellant would make improvements.
58On cross-examination, Ms. Mallory agreed that the previous investigation regarding the appellant related to different animals and to a weight issue with animals which was not an issue in the current matter. She also agreed that:
f. A previous food issue was no longer present as of the date of the investigation;
g. Despite there being muddy water, the animals were well hydrated in the veterinarian’s opinion, but she believed there should be clean access to water at all times; and
h. There are exceptions, such as when walking an animal, such that clean water is required at “all times.”
59Mallory also testified that it was her belief that the animals suffered psychological harm and were down in the basement for long periods because they “pancaked” when they were brought upstairs. Mallory inferred this to mean that the animals were unsure or unused to being upstairs. I find that this theory of “pancaking” was not a sufficient basis to assume there was any distress. The lay witnesses stated that the dogs were used to being upstairs and the observation was only made by the inspectors on the date of the inspection. I was not provided a conclusive basis to find that this behaviour was a sign of distress.
60I disagree that the previous compliance orders and exercises from the previous encounter are a useful comparator or indicator of the appellant’s willingness to comply with what could have been further compliance orders regarding the issues stated. The August 23, 2022 investigation was for a different purpose than the weight and food management issues previously raised regarding entirely different animals, and these were not an issue raised in this matter. Given the lack of any attempt at first seeking compliance before this investigation on these separate issues, I can only compare the situation with the appellant’s witnesses accounts, along with the complaint of Mr. Roche and Ms. Lusty.
61I find that the appellant’s witnesses were clear and consistent that the animals were adequately cared for. This was corroborated by the findings of the veterinarian regarding their health. While the investigation raised concerns with compliance with the Regulation, these violations or the appellant’s behaviour are insufficient to ground a belief of distress or do not apply as stated above. There were simply too many assumptions drawn from the observations that were not sufficiently verified to demonstrate reasonable grounds to believe the animals were in distress.
62Given my findings, I revoke the respondent’s decision to keep the animals in its care. The animals are ordered to be returned to the appellant
Revocation of the Statement of Account
63Given my decision to revoke the AWS’ decision to remove the animals and the respondent’s subsequent decision to keep the animals in its care, the Statement of Account dated August 30, 2022 in the amount of $1,560.00 is also revoked and the appellant is not liable for same.
ORDER
64I revoke the decision to remove the appellant’s 6 dogs and rabbit pursuant to s. 30 of the PAWS Act. I also revoke the decision to keep these same animals pursuant to s. 31(6)(a) and (b)(i) of the PAWS Act.
65I order the removed animals to be returned to the appellant.
66I revoke the statement of account served under ss. 35(1) of the PAWS Act applying to the animals removed on August 23, 2022.
Released: January 23, 2023
Matthew M. Létourneau, Member
Footnotes
- S.O. 2019, c. 13.
- O Reg 444/19 made by virtue of the PAWS Act (“the Regulation”).