Abitibi Sled Dogs c/o Jacob Betker v. Chief Animal Welfare Inspector, 2023 ONACRB 43

Tribunals ontario

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission d’étude des soins aux animaux

Date: 2023-05-18

Appeal under section 38(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.

Between:

Abitibi Sled Dogs c/o Jacob Betker

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicator: Anxhela (Angela) Peco, Member

Appearances:

For the Appellant: Jacob Betker

For the Respondent: Michael Draper, Regional Supervisor, Animal Welfare Services

Jason Tam, Counsel

Heard by videoconference: March 1, 2023

OVERVIEW

1Jacob Betker (the appellant) owns a dog sledding business, Abitibi Sled Dogs, in Connaught, Ontario (the property).

2Animal Welfare Services (AWS) inspected the property on January 10, 2023. Following the inspection, AWS served a compliance order (the Compliance Order) on the appellant under s. 30(1) of the Provincial Animal Welfare Services Act, 2019¹ (the Act) on January 19, 2023.

3The Compliance Order related to all dogs residing on the property (13 adult dogs and 17 puppies) and required the appellant to provide the dogs with shelters of suitable size to relieve their distress. More specifically, it required shelters to be of a size and design that permit the dogs to turn around, lie down with their legs extended to their full extent and stand with their heads held at normal height². It had a completion date of February 16, 2023.

4On January 24, 2023, the appellant appealed the Compliance Order to the Animal Care Review Board (the Board). He appealed on the basis that the dogs were not in distress; the regulation that sets out shelter requirements for dogs that are kept outdoors is vague; and that AWS’ measurements of the dogs and their shelters were inaccurate.

5The appellant sought to have the Compliance Order revoked. In the alternative, he sought more time to comply with shelter height requirements.

6The matter proceeded to a videoconference hearing.

ISSUE IN DISPUTE

7Should the Compliance Order be confirmed, revoked, or modified?

RESULT

8Pursuant to s. 38(9) of the Act, I modify the Compliance Order and extend the completion date to July 31, 2023, to permit modifications of the shelters or construction of new shelters that permit the dogs to stand with their heads held at normal height.

ANALYSIS

9In determining whether the Compliance Order should be confirmed, revoked, or modified, I must determine whether the dogs’ shelters meet the requirements set out in O. Reg. 444/19, “Standards of Care and Administrative Requirements” (the regulation). Specifically, I must determine whether the shelters are of a size and design that permit the dogs to lie down with their legs extended to their full extent, and stand with their heads held at normal height, as required by s. 4.2(1)(f).

10For the reasons that follow, I find that the shelters:

1. are not of a sufficient size to permit the dogs to stand with their heads held at normal height; and
2. are of a sufficient size to permit the dogs to lie down with their legs extended to their full extent.

11Therefore, the Compliance Order is modified by requiring action with respect to shelter heights only. The new date for compliance is July 31, 2023.

Issue 1. A) Do the shelters allow the dogs to stand with their heads held at normal height?

12Section 4.2(1)(f) of the regulation requires, in part, that the size of the shelter permit the dog to stand with its head held at normal height. I find that the shelters do not meet this requirement.

Appellant’s Evidence and Submissions

13The appellant testified that he was an experienced carpenter and had built the shelters himself. He stated that they were all designed in the same way and were 23 inches in height. He supported his testimony with photographs and videos of his property.

14The appellant filed a document with measurements he had taken of his 11 dogs³ and their corresponding shelters on January 25, 2023.⁴ Dog heights ranged from 24 to 33 inches. Shelter heights ranged from 22.75 to 23 inches (with a quarter to half an inch variance).

15The appellant was cross-examined on the size of the shelters as it related to height. When questioned about his own measurements of the dog named Franklin (33 inches tall) and its shelter (22.75 inches high), the appellant disagreed that the dog would be too tall for its shelter if the dog were standing at regular height with its head at normal level. He stated that the dogs’ normal way of standing is not correlated to how AWS was measuring the dogs. He added that there is a variance to how dogs carry themselves and that AWS is having the dogs stand in a specific way based on their interpretation of the regulation.

16The appellant argued that the regulation is vague and does not specify which measurements should be taken to determine the suitability of the shelters. He also stated that AWS’s measurements of dog and shelter heights were unreliable because they changed from one inspection to the next, and they were at odds with his own measurements. In the alternative, he argued that he be given three to six months to modify the shelters by adjusting their heights.

Respondent’s Evidence

17Senior Investigator Erin Brûlé testified for the respondent. She was present at both inspections. At the first inspection on January 10, 2023, her role was to take measurements of the dogs and the shelters while another investigator recorded the measurements. At the second inspection on February 14, 2023, her role was to scribe measurements taken by another investigator. The same measuring devices and methods were used at both inspections.

18Regarding the January 10, 2023 inspection, Investigator Brûlé testified that she used a soft tape measurer to measure the dogs. The height of the dogs was measured from the ground to the top of their head or the tip of their ears. She used a digital measuring device to measure the height of the shelters on the inside. She testified that in some cases she observed straw bedding frozen to the bottom of some shelters, which she tried to remove to ensure an accurate reading.

19Relying on a summary of log forms that recorded descriptions of the dogs and measurements of the dogs and their shelters, Investigator Brûlé concluded that all 12 dogs measured on January 10, 2023 were taller than their shelters and would not be able to stand up with their heads at normal resting posture. As a result, she concluded that the shelters did not meet the standard of care.

20Based on measurements taken at the second inspection on February 14, 2023, she found that all 11 dogs measured on that date were taller than their shelters⁵.

21The respondent argued that a reasonable interpretation of the requirement that dogs be able to stand at their normal height is that when you measure the dog, the dog is standing. The measurement should be taken from the ground to the top of their head in normal height, and not when the dog is crouching, slouching, looking up or looking down. Regarding the accuracy of the measurements, the respondent argued that some variation is to be expected when you measure dogs as they move during measurement, and that the presence of frozen bedding accounted for slight differences in shelter heights from the first to the second inspection.

Analysis

Measurement method

22First, I considered the appellant’s argument that the regulation is vague and does not specify which measurements should be taken to determine if a shelter is of a suitable size. The appellant did not a propose a different interpretation of the regulation and only submitted that dogs carry themselves differently.

23I agree with the appellant that the regulation does not specify the dimensions needed to determine size suitability. However, the regulation does not preclude, and in fact it supports, an interpretation that height be considered by requiring that a dog be able to stand inside its shelter. I accept the respondent’s interpretation that, read in the ordinary sense, the requirement that a shelter accommodate a standing dog requires a dog’s height to be measured while the dog is standing. The fact that the regulation also requires that the dog be able to stand with their head held at normal height further suggests that the dog’s measurement should include its head.

24As such, it is reasonable to rely on height and for height to be measured from the ground to the top of a dog’s head/tip of its ears in order to determine if the shelter can accommodate the dog standing. Therefore, if a standing dog is taller than their assigned shelter, the shelter does not permit the dog to stand and does not meet the standard of care.

What did the measurements establish?

25The burden of proof on this appeal is on the appellant. The appellant’s own measurements established that all 11 dogs were taller than their shelters. The smallest difference between a dog’s height and its corresponding shelter’s height was one inch. The largest difference was a significant 10 inches. Accepting these measurements, I find that the shelters do not permit the dogs to stand up with their heads held at normal height, and therefore do not meet the requirement in the regulation.

26While the appellant’s own evidence established that each dog was taller than its shelter, the respondent’s evidence supported the same conclusion. AWS’ measurements at both inspections showed that each dog was taller than its assigned shelter.

Were AWS’ two sets of measurements significantly different and inconsistent with the appellant’s measurements?

27The appellant cross-examined Investigator Brûlé on the differences between measurements at the first and second inspection, differences between those figures and his own, and the fact that some measurements lacked decimal places. He also noted that AWS’ changing measurements left him uncertain as to what requirements to build to if the Compliance Order was ultimately confirmed.

28I find that where there were differences between AWS’s first and second set of measurements, Investigator Brûlé offered reasonable explanations for them. I also find that AWS’s February 14, 2023 measurements were largely consistent with the appellant’s. I also find that even though decimal places would have provide more specificity, they would not have changed Investigator Brûlé’s findings that all dogs were taller than their shelters. Below is a more detailed discussion of shelter and dog height measurements.

a) Differences in shelter heights

29I agree with the appellant that there were some differences in the shelter heights recorded at the first and second inspection. The biggest difference was 3 inches. However, I accepted Investigator Brûlé’s evidence that the presence of frozen straw bedding on January 10, 2023 created space between the base of some shelters and where her measurement started, and that this contributed to the difference between some of the January and February measurements. It makes sense that in the absence of straw bedding frozen to the base of the shelters in February, the height measurements in February would be slightly larger. In addition, if I am to accept the appellant’s evidence that the height is uniform across the shelters and ranges from 22.75 to 23 inches (with some variance), AWS’ measurements from February 14, 2023 are largely consistent with the appellant’s because they range from 22 to 23 inches.

b) Differences in dog heights

30I agree with the appellant that there were some differences in dog heights as between the first and second inspection. However, I disagree that these were significant. I accept Investigator Brûlé’s testimony that dog measurements tend to fluctuate because dogs move as they are being measured. This was a reasonable explanation for the difference in dog heights as between the first and second inspection, and between AWS’ measurements and the appellant’s.

31I do not accept that dog movement explains the significant discrepancy in the height of the dog named Dan, which decreased by 9 inches at the second inspection (from 35 to 26 inches). Even if the dog were timid or scared during the measurements, another, more accurate, measurement should have been taken. Neither the first nor the second measurement was consistent with the appellant’s measurement for the same dog at 31 inches tall. I therefore find that AWS’ measurement of this dog’s height more likely than not contains an error.

32Even though setting aside AWS’ measurement and accepting the appellant’s measurement for the dog named Dan still leads me to conclude that the dog is taller than its shelter, the actual measurement is important for compliance reasons. If the appellant were held to the larger measurement, he may be required to build a shelter that is higher than what is needed, which may result in heat loss in the winter.

33In summary, I find that each dog is taller than their assigned shelter. This is supported by both the appellant’s and the respondent’s measurements, which were largely consistent. Where they were not consistent, the differences were reasonably explained. Ultimately, the shelters are not high enough to accommodate the dogs when they are standing, and they do not meet the standard of care set out in s. 4.2(1)(f) of the regulation.

Finding of distress

34I wish to address the appellant’s argument that the dogs were not in distress and that such a label is unfair. Distress has a specific legal meaning under the Act and includes the state of being in need of proper care⁶. The Act operates in such a way that if an owner does not comply with the minimum standards of care prescribed in the regulation, as I have found in this case with respect to shelter height, then the care is not proper and the animals are, by definition, in distress⁷. I acknowledge, however, that despite the finding that the dogs were in distress, the parties agreed that the dogs were otherwise healthy, and the appellant was acting in good faith. I also found Investigator Brûlé’s evidence to be fair and balanced and note that the appellant’s video evidence showed AWS investigators commenting favourably on other features of the shelters that were not at issue in this hearing.

Issue 1. B) Do the shelters allow the dogs to lie down with their legs extended to their full extent?

35Section 4.2(1)(f) of the regulation requires shelters to be of a size and design that permit the dogs to lie down with their legs extended to their full extent. I find that the shelters meet this requirement.

Appellant’s Evidence and Submissions

36The appellant led evidence to challenge AWS’s measurements of shelter length. He also argued that the shelters were large enough to allow the dogs to lie down and stretch to their full extent because the diagonal of each rectangular-shaped shelter was longer than every dog.

37The appellant testified that the exterior length of each shelter was 34 or 36 inches. His measurements from January 25, 2023 indicated that the shelters were 35, 36 or 36.5 inches (with a quarter to half an inch variance).⁸ Dog lengths ranged from 31.5 to 40.5 inches. Four dogs were longer than their shelters.

38In further evidence, the appellant provided measurements for the diagonal of the rectangular base of the shelter, which measured 41.05 inches when shelter length was 34 inches. The diagonal measured 42.72 inches when the shelter length was 36 inches. He argued that based on the diagonal, the shelters meet the requirement that dogs be able to lie down and stretch to their full extent if they lie down diagonally. He acknowledged in cross-examination that a dog would not only lie down diagonally.

Respondent’s Evidence and Submissions

39Investigator Brûlé testified that on January 10, 2023, she used a soft tape measurer to measure the length of the dogs from the tip of their nose to the base of their tail. She used a digital measuring device to measure the interior length of each shelter. She observed that four dogs were longer than their shelters and concluded that those dogs could not lie down and stretch to the full extent.⁹

40Based on measurements taken at the second inspection on February 14, 2023, she found that the same four dogs were longer than their shelters.

41The respondent submitted that their concern was more so the height of the shelters but that they would like the Compliance Order confirmed on the basis of the length requirements as well. They took the position that the diagonal measurement would not be sufficient because a dog does not only lie down diagonally.

Analysis

42Since the respondent interprets the regulation to require shelter space that is equal to or greater than a dog’s length, I find that that space is available to the dogs. I accept the appellant’s argument that the shelter can accommodate the dogs’ lengths diagonally. The longest dog in the appellant’s measurement sheet is 40.5 inches (Franklin). The dog was assigned to the larger of the two shelters, 36.5 inches long, with a corresponding diagonal of 42.72 inches. The diagonal of the larger shelter would therefore accommodate the longest dog. All other dogs are at or below 40 inches in length and there would still be space around the dog as the shelter narrows where the edges meet the diagonal.

43I do not accept the respondent’s argument that the length of the shelter should be used to determine if a dog can lie down and stretch to their full extent because “a dog does not only lie down diagonically.” While that is true, it does not support why length must be the determining measurement. If I accept the respondent’s argument that the measurement of the diagonal is not sufficient because a dog does not only lie down diagonically, that means the shelter needs to accommodate the dog lying down in every possible direction. If that is the case, then even an adequate length would not meet the respondent’s criteria if the dog chose to lie down along the width of the shelter, for example.

44As to the appellant’s submission that there were large discrepancies in AWS’ length measurements, I disagree. AWS’ measurements for shelter lengths were 33 to 36 inches on both January 10 and February 14, 2023¹⁰. As with the appellant’s own measurements, minor variances are expected. Variances in dog lengths were in the 2- to 4-inch range, and reasonably explained by the fact that dogs move during measurements.

ORDER

45Pursuant to the powers of the Board under s. 38(9) of the Act, the Compliance Order is modified to require changes to the shelters, or construction of new shelters, that permit the dogs to stand with their heads held at normal height. The new compliance date is July 31, 2023.

Footnotes

1. 1Provincial Animal Welfare Services Act, 2019, S.O. 2019 c. 13.
2. 2The parties did not file evidence or make submissions on the issue of whether the shelters permitted the dogs to turn around, even though it was listed as a requirement in the Compliance Order.
3. 3There were no measurements for the dogs named Diamond and Answer.
4. 4The appellant’s document contained measurements for “shelter length” and “shelter width.” The “shelter width” column contained the longer of the two measurements and I have taken those to be the shelter lengths. These varied from 34 to 36.5 inches, which aligns with diagrams provided by the appellant in that same exhibit and is consistent with his testimony that shelter lengths ranged from 34-36.5 inches.
5. 5Although there were 13 adult dogs on the property, only 12 dogs were assigned a shelter on January 10, 2023. The dog named Diamond was housed in a separate whelping area. On February 14, dogs named Diamond and Answer had access to the whelping area.
6. 6s. 1(1) of the Act.
7. 7Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632.
8. 8The appellant would sometimes refer to these measurements as “width”. They also appeared in a column labelled “shelter width”. For clarity, I refer to them as shelter lengths, which is consistent with the appellant’s diagram in that same exhibit and with his testimony that shelter lengths were 34 or 36 inches.
9. 9The dog named Diamond was housed in a separate whelping area and was not included in the measurements.
10. 10One of AWS’ measurements for shelter length was 23 15/32 inches on February 14, 2023. This is more likely than not an error due to AWS recording what should have been shelter width under the column for shelter length. The misattributed shelter length was 33 27/32.