Appeals under s. 38(1) of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13.
Between:
James White
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator: Ashley Deathe, Member
For the Appellant: James White, Self-Represented
For the Respondent: Jason Tam, Counsel for the Respondent
Ryan Sparks, Regional Supervisor, Animal Welfare Service (AWS)
Alyssa Dougherty, Senior Investigator, AWS
Court Reporter: Barbara Pollard
Heard by Videoconference: April 20, 2023
OVERVIEW
1This is a dispute concerning the decisions made by Animal Welfare Services to remove and keep in care sixty-three (63) animals that had been cared for by James White (the Appellant) at his property located at 23641 Industrial Rd., Thamesville, Ontario (the property).
2From January to March 2023, AWS made a number of inspections of the property and issued compliance orders under section 30 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the Act). Those compliance orders were not appealed.
3On March 29, 2023, AWS issued a Notice of Removal under s.31(1) of the Act and removed of the following 63 animals from the property:
a. 19 pigeon type birds;
b. 9 quail type birds;
c. 8 chickens of various breeds;
d. 7 rabbits of various breeds;
e. 3 peafowl type birds (peacocks);
f. 4 head of cattle;
g. 8 goats of various breeds;
h. 2 guinea hens; and
i. 3 geese.
4On April 4, 2023, AWS made the decision to keep the animals listed in paragraph [3] above (the animals) in the care of the Chief Animal Welfare Inspector (the Respondent), pursuant to s.31(6) of the Act.
5The Appellant appealed the Removal Order together with the Decision to Keep in Care to the Animal Care Review Board (the Board).
6A case conference was held on April 12, 2023, and the matter proceeded to a one-day hearing by video-conference on April 20, 2023.
7The animals were still in the care of the Respondent at the time of the hearing.
PRELIMINARY ISSUE – The Board’s Jurisdiction to Order the Animals Returned
8The Notices of Appeal concern the proper exercise of the Respondent’s power to remove animals and to keep those animals in care pursuant to subsections 31(1) and 31(6) of the Act.
9The Appellant has not filed an application for revocation of an order under section 38(3) of the Act nor has he filed an application for return of an animal under section 38(4) of the Act.
10In the Notices of Appeal, and again at the hearing, the Appellant indicated that he wanted the animals returned. An application under either s.38(3) or s.38(4) would require the Appellant to acknowledge that animals were in distress at the time of the Removal Order or that Decision to Keep in Care was reasonable at the time it was made.1 Throughout the hearing, the Appellant maintained that the animals were not in distress at the time they were removed nor were they at risk of being placed in distress if returned to him. This is not, in form or substance, a s.38 application.
11The Respondent’s position is that the Board has no jurisdiction to order the return of the animals because the Appellant did not file s.38 application. The Respondent appropriately conceded that the question of whether to return the animals was raised at the Case Conference, but submits it was only raised in the context of the appeal of the decision to keep the animals in care.
12The Respondent objected to the Board hearing any evidence that the circumstances leading to the animals’ distress had been alleviated because this would represent a new issue, one they had not prepared for, and would thus violate their rights of procedural fairness.
13The “issue of return” may be considered in the context of appeals of the removal order and the decision to keep in care (sections 31(1)) and 31(6) of the Act). Section 38(9) of the Act clearly specifies that after a hearing, the Board may do a number of things, including ordering the return of an animal that the Respondent removed under s. 31(1) or that was taken into care if the Respondent under s. 31(6) of the Act.
ISSUES
14The issues to be determined are:
Removal under s.31(1)
a. Were the animals in distress at the time of their removal on March 29, 2023? If so, was it necessary for AWS to remove the animals to alleviate their distress?
Decision to Keep in Care under s.31(6)
b. Did the Respondent have reasonable grounds to believe that the removed animals would be placed in distress if they were returned to the Appellant at the time that the April 4, 2023, Decision to Keep in Care was made?
RESULT
15Based on the evidence before me, I find that:
Removal under s.31(1)
a. All of the animals were in distress at the time of their removal on March 29, 2023, and it was necessary for the Respondent to remove the animals to alleviate their distress.
Decision to Keep in Care under s.31(6)
b. The Respondent had reasonable grounds to believe that all the animals may be placed in distress if they were returned to the Appellant at the time of the Keep in Care Decision was made on April 4, 2023.
ANALYSIS
BACKGROUND: A history of Inspections
16There were numerous interactions between the Appellant and AWS leading up to the removal of the animals which provides important context for these appeals. The following table summarize the timeline of interactions between AWS and the Appellant:
Date
Event
In attendance
December 22, 2023
First attendance at the Property in response to a compliant
Ryan Sparks, Regional Supervisor (West Region) and Appellant.
January 20, 2023
Inspection
Inspector Dougherty and Kiefer White
January 24, 2023
Compliance Orders:
(1) Goats and Cattle must have adequate bedding (Due January 30, 2023, at 9AM);
(2) All animals on Property must have constant access to water and food (Due January 25, 2023, at 9am)
Letter detailing above concerns, providing reference materials, provided by Inspector Dougherty to the Appellant
Inspector Dougherty and Appellant
January 25, 2023
Inspection
Inspector Dougherty
January 30, 2023
Inspection
Inspector Dougherty
February 2, 2023
Inspection
Inspector Dougherty
February 9, 2023
Inspection
Appellant, Inspector Dougherty, Regional Supervisor Sparks, and Ashley Lennox, Supervisor and registered veterinarian technician
February 14, 2023:
Compliance Order:
(3) Maintain enclosures and remove unsafe materials and all animals to must have access to sanitary conditions (Due February 17, 2023, at 9AM)
(4) No enclosure is to contain one or more animals that could be a danger to another animal (due February 16, 2023, at 9AM)
February 23, 2023
Inspection
Appellant, Inspector Dougherty and Dr. Cockburn (veterinarian)
March 14, 2023
Inspection and Removal of Dove Type Birds (x2) due to lacerations / wounds on basis of Veterinarian Certificate (Dr. Bruce Robertson)2
Inspector Dougherty, Dr. Bruce Robertson. Spencer White
March 20, 2023
Decision to Keep in Care of Dove Type Birds (x2) due to unsanitary conditions and lack of husbandry
Regional Supervisor Sparks
March 21, 2023
Compliance Order:
(5) Provide all cattle and goats salt, mineral supplementation, and grain. (Due March 29, 2023, at 9AM)
(6) Provide all chickens with adequate amounts of layer’s diet. Provide all laying hens access to nesting boxes
(7) Clean and maintain all bird enclosures (Due March 29, 2023, at 9AM)
(8) Provide all peafowl and guinea hens game-bird diet. No animals to be fed a diet of cracked corn only. (Due March 29, 2203, at 9AM)
Inspector Dougherty (sent by email to Appellant, did not attend Property on this date)
March 29, 2023
Inspection and Removal 63 animals
Inspector Dougherty, Dr. Foot, Spencer White
March 31, 2023
Telephone conversation
Ryan Sparks, Appellant, others on the call.
March 31, 2023
Decision to Keep in care 63 animals
Ryan Sparks
17Inspector Alyssa Dougherty initially inspected the property on January 20, 2023. Dougherty was accompanied by one of the Appellant’s adult children, Keifer White, but not the Appellant. Dougherty left the property to take time to review the codes of practice concerning farm animals and birds and planned to return to discuss a number of concerns with the Appellant.
18Initially, Dougherty issued only two compliance orders (January 24, 2023) which she said concerned the most urgent matters: access to water and food for all the animals, and bedding for the cattle and goats. She testified that even though there were additional issues with enclosures and sanitation, she did not want to overwhelm the Appellant with numerous compliance orders and chose to focus on the animals having access to food and water, and dry area to rest.
19When she returned to the property on January 24, 2023, to serve those orders on the Appellant, she included an explanatory letter outlining additional issues and identifying online resources. An excerpt from that letter follows:
[…]The inspection revealed many areas of concern, including but not limited to:
Lack of adequate feed and water, with some animals displaying a poor body condition
Lack of appropriate housing, including protection from elements and space allowance
Inadequate sanitary conditions
Hazardous materials present in animal enclosures
This letter is to inform you that you are being issued a warning regarding violations of the PAWS Act and Ontario Regulation 444/19 made under the PAWS Act pertaining to the standards of care. Attached you will find Section 3 of the Standards of Care and Administrative Requirements regulation, outlining the basic needs for all animals. These documents can be viewed in their entirety by following links on the website: www.ontario.ca/laws/statute/19p13
I recommend that you review the applicable Codes of Practice for the Care and Handling of Farm Animals by the National Farm Animal Care Council. These documents further outline the required (appropriate) and recommended care practices for specific animals, including the animals which you own. Codes of practices can be found at https://www.nfacc.ca/codes-of-practice
You are also being served orders to provide all animals on site constant access to appropriate feed and clean potable water, and to provide all goats and cattle an appropriate resting area. Please review the documents in their entirety, as the actions you are required to take to relieve the animals of their distress and the compliance times are outline[d] on the orders.
20When Dougherty returned to the property on the compliance date (January 25, 2023), she observed that the animals still did not have access to water, or the water which was accessible was dirty. Opting to re-inspect again on January 30, 2023, Dougherty noted that on that later date there was some progress with water access for the animals, but there was not full compliance and feed availability was still inadequate.
21Dougherty was accompanied by the veterinarian Dr. Cockburn during her February 23, 2023, inspection and by veterinarian Dr. Foot during the final inspection that resulted in the removal of the animals on March 29, 2023. Each veterinarian provided a report and those reports were entered into evidence at the hearing. In general, the veterinarians’ observations and concerns echoed Dougherty’s testimony.
22From January to March 2023, Dougherty testified that her inspections revealed a number of ongoing animal welfare concerns regarding different animal species including:
a. The status of some animals’ enclosures included undue risk of harm from protruding nails or other material;
b. The animals did not have consistent access to water or the water that was accessible was visibly dirty, vulnerable to excrement contamination; or in a container too small for the number of animals using it;
c. The animals did not have access to quality feed that was species appropriate or otherwise did not promote good body condition;
d. The conditions of the animals’ enclosures were unsanitary; and
e. The bedding was not sufficiently dry or insulated.
23During the February 23, 2023, inspection, three doves were found dead. On March 14, 2023, two other doves were removed and taken into care because they had harmed each other. During that inspection, Dougherty also observed that one of the cows had blood on its side which heightened her concerns about the previously noted hazards in the animals’ enclosures.
24Both Dougherty and the Appellant testified that the Appellant was resistant to some of her directions.
ISSUE 1: The animals were in distress on March 29, 2023 (the removal date)
25Section 1 of the Act defines distress as:
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.
26The basic standard of care for all animals is further particularized in s. 3 of the Standards of Care and Administrative Requirements Regulation (O. Reg. 444/19) (the Regulation). That section states that every animal must be provided with adequate and appropriate food and water, resting and sleeping area, sanitary conditions, and protection from the elements. Moreover, if the animal is confined to a pen or other enclosed area, the enclosures must be in a state of good repair and be free of materials that increase physical risk.
27Owners are required to comply with the minimum standards prescribed in the Act and in the Regulation as non-compliance with those standards means that animals are “in distress” (Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632 at para 52).
28At the March 29, 2023 inspection, Dougherty was of the opinion that the animals were under chronic distress due to ongoing non-compliance or incomplete compliance with numerous orders resulting in overall inadequate access to water and food, inadequate bedding, hazardous enclosures, and unsanitary conditions.
29Dr. Foot, veterinarian, was on-site during the March 29, 2023, inspection but did not sign a removal certificate. His report was prepared after he left the property but on the same day the animals were removed. Dr. Foot’s report identified concerns with the wellbeing of each species such as the safety of the animals’ enclosures, lack of access to food and water, as well as a lack of sanitation and bedding. He also observed that the goats and cattle were underweight.
30The Appellant testified that he had self-taught knowledge of animal husbandry and complied with the orders to the extent he felt necessary. He testified that he knows the needs of each of his animals: “They get all the respect in the world. They are not beaten; they are not harassed. My biggest fear is for them to die.” He confirmed that he has invested significant money into the care of the animals and would not want that investment wasted.
31The Appellant’s general motivation to care for animals and his work ethic was also described by his daughter Lydia. She testified about growing up on the property learning to care for the animals with her father. She also witnessed her father taking care to review each order he received and testified that he took steps to comply.
32The Appellant acknowledged on cross-examination that he was aware of his legal responsibilities to provide adequate shelter and access to food and water for the various species but believed the efforts he had made were adequate or that the orders were not reasonable.
33He disputed Dougherty’s testimony that the animals did not have adequate access to food or water. He completed his chores once per day, after his workday, and made sure the animals were fed and given water at that time. He further stated that constant access to food was not appropriate for the animals. Dougherty agreed on cross-examination that advisability of constant access to feed was “situational.” The Appellant was of the view that if the animal needed something they would be vocal about it.
34On the subject of the quality of the animals’ enclosures, the Appellant did not dispute that the structures looked rundown but denied the state of the enclosures represented a safety risk to the animals. He testified the dampness on the property and the state of the enclosures were temporary and unavoidable because:
a. Recent efforts to eliminate a rat infestation caused him to take apart structures so the property was temporarily messy; and,
b. Due to its location and geography, the property sometimes takes extra work to maintain - it gets wet easily - but the Appellant described how he makes efforts to move the animals to drier areas as the property dries out.
35The Appellant disputes the suggestion that there were nails protruding from boards at the time of the removal, having gone around the property to hammer down the nails that he could see once the issue was brought to his attention.
36Furthermore, the Appellant disputes the finding that some of the animals had poor body conditions and gave two examples to support his position that the animals’ condition was acceptable: (1) the black cow that was listed as underweight was a yearling and their weight was appropriate for their age, (2) the peacock was in full plume and if it was under stress it would not have looked as it did.
37In sum, the Appellant disputed Dougherty’s testimony that the animals lacked access to food, water, adequate bedding, sanitation, or that their enclosures were hazardous. He testified:
a. That it would be unhealthy for animals to receive a constant food source and that his feeding practice (once per day) was sufficient;
b. That he had decades long experience with the care of animals and that the Inspector’s directions and orders were unreasonable; and
c. The Compliance Orders were impossible to comply with given the unusual weather and specific issues regarding this property.
38He further testified that he preferred dealing with Regional Supervisor Sparks over Inspector Dougherty even stating that he was “too old to be told by a little girl how to do my stuff.” He stated that he would have followed the veterinarian’s recommendations but could not because AWS did not forward the report to him as promised. This report was provided to the Appellant after the Respondent received in, in April 2023 and only after the animals had been removed.
Conclusion
39I find the animals were in distress on March 29, 2023, and, as a result, there were grounds for their removal as the animals were in need of proper care, food, water, and/or shelter.
40I find that Dr. Foot’s report was consistent with Dougherty’s observations about the enclosures and the need for access to food and water as required by the previous compliance orders. I also find that the observations and Dr. Foot’s report are consistent with the over 200 photographs were entered into evidence in this matter taken from various dates showing that the animals did not have consistent access to water, conditions were unsanitary, hazards were present in many of the enclosures, and there was insufficient dry rest area for the cattle.
41I find that it is irrelevant that Dr. Cockburn’s veterinarian report from the February 23, 2023, was released to the Appellant after the animals had been removed. The orders did not specify medical conditions to be treated, nor was the removal based on the lack of medical care provided to the animals. The concerns regarding access to feed, water, bedding, and safe enclosures are consistent with the pre-existing orders issued by Dougherty. While the Appellant may have had a personality conflict with Dougherty, that does not justify non-compliance with the orders. Dougherty was as qualified inspector with the authority to issue compliance orders. Those compliance orders were not appealed. It is unfortunate that the Appellant was resistant to her directions.
42I accept Dougherty’s testimony, which is supported by Dr. Foot’s report and the numerous photographs, and find that the conditions of the animals at removal were as follows:
The bird species:
a. The 19 pigeon type birds did not have access to adequate sanitary conditions, and it was observed that their feet, legs and feathers had dried urates and feces.
b. The 9 quail type birds did not have access to adequate food or water and had poor sanitation.
c. The 8 chickens of various breeds did not have access to adequate feeding or watering and no nesting boxes were available.
d. 3 peafowl type birds (peacocks) had inadequate access to food.
e. 2 guinea hens did not have access to adequate water or food. Their perches had nails protruding from them which created a hazard.
f. The geese did not have adequate access to food and there was no shelter or dry area present for the geese.
The mammal species:
g. The 7 rabbits of various breeds did not have access to adequate food or water, there was no bedding present in any of the cages, their enclosures were unsanitary partly due to the birds (three peafowl) housed overhead who could defecate into their bedding, food, water and onto the rabbits.
h. 4 head of cattle did not have access to adequate bedding, nor did they have access to clean water or adequate food. Their body condition was poor (3/9) at the time of removal.
i. 8 goats of various breeds did not have consistent access to adequate food or water. All goats had poor body condition at the time of removal. Their enclosures included loose boards with nails protruding which was a safety hazard.
43In sum, the animals were not receiving adequate nutrition to promote their well-being, their housing was inadequate because it presented a hazard or did not provide sufficient protection from the elements, or the enclosures did not include adequate bedding. The animals were in distress.
44I also find it was necessary to remove animals to relieve their distress. Specifically, due to the numerous compliance orders that were outstanding at the time of removal, in addition to the Appellant’s admitted resistance to comply with those orders by March 29, 2023, it was reasonable for Dougherty to believe that removal was necessary to relieve the animals’ distress.
45It will not always be the case the mere fact that a compliance order is not fulfilled justifies the removal of animals. On the particular facts of this case, I find that the Respondent exercised its statutory powers appropriately.
ISSUE 2: It was reasonable to determine that the animals would be placed back in distress if returned to the Appellant when the Decision to Keep in Care was made
46Under s. 31(6) of the Act, the Respondent may decide to keep an animal in its care that was removed under s. 31(1) if it determines doing so is necessary to relieve the animal’s distress, or it has reasonable grounds to believe that the animal may be placed in distress if returned to its owner.
47Regional Supervisor Sparks testified that he issued the decision to keep in care on March 31, 2023, because of the internal report provided by Dougherty that summarized the non-compliance of orders, her belief that the Appellant was unwilling to work with AWS and resistant to change, and the fact that the Appellant did not have access to a veterinarian when many of the animals required medical care after they were removed. He believed that the animals would be placed back into distress if returned to the Appellant.
48Sparks testified that he was not aware that any of the compliance orders had been complied with as of the date of the hearing.
49The Appellant and his witnesses, his adult children Lydia and Spencer White, testified that when the animals were removed, they were not aware that prior compliance orders were outstanding. They explained that receiving numerous compliance orders over time caused them confusion. This confusion was exacerbated by the lack of access to a veterinarian’s report from the February 2023 inspection that had been promised to them.
50Lydia further testified that she witnessed her father review each order and attempt to comply with each request. Following the February 23, 2023, inspection that took place in the company of Dr. Cockburn, she understood that her father would have the opportunity to review that report and that there would be additional recommendations made at that time.
51Spencer also testified that he believed that as of March 29, 2023, the past orders had been complied with.
52Despite the testimony from the Appellant and his witnesses, the balance of the evidence shows that the Appellant knew AWS believed him to be in non-compliance at multiple points throughout January to March 2023 such as:
a. Dougherty testified that on February 9, 2023, a number of issues were discussed with the Appellant including the non-compliance with the previous orders regarding access to food and adequacy of bedding. On February 23, 2023, Dougherty recalls conversations with the Appellant, with the veterinarian on site, regarding the low body condition of the cows, the need for a dry area for the cattle and goats to dry their hooves and appropriate diet;
b. In the Appellant’s documents, he included an email to Sparks where he defends the feed provided to the birds, to which Sparks replied on March 22, 2023, confirming that the diet for the qual, guinea hens, and the peacocks was not adequate; and
c. In his oral testimony, the Appellant acknowledged that there was “always a little headbutting about the feed and water” with Dougherty.
53I find that the Appellant knew or ought to have known the orders were not complied with. Fundamentally, the Appellant believed the orders to be unreasonable because of his own experience in animal husbandry and did not accept or agree with some of the actions he was being directed to take. That is not the same as saying he did not know he was expected to take certain steps nor is it the same as saying he had complied with orders.
54Nonetheless, I accept that the Appellant was under the impression that information about his animals’ specific care needs would be provided to him by the veterinarian who accompanied Dougherty during her inspection on February 23, 2023. That report was provided to the Appellant by the Respondent when they received it, after the animals had been removed.
55I find it that waiting for that report is not sufficient justification for not complying with the orders which had been made prior to the veterinarian’s attendance.
56The Board recognizes that the Appellant made some structural improvements to the property prior to the date of the removal but those changes to the property were insufficient to demonstrate a commitment to comply with the Act or the numerous compliance orders outstanding. It is still unclear whether the Appellant intends to comply with the orders requiring constant access to water and feed or adequate bedding.
57On all the evidence before me, I find that Sparks had reasonable grounds to support his decision to keep the animals in the Respondent’s care based on his concern that they may be placed in distress if returned to the Appellant.
CONCLUSION AND ORDER
58For all the reasons set out above, I find:
a. The animals were in distress at the time they were removed, due to failure to provide the basic standards of care to those animals as required by the Act and by the Regulation;
b. It was necessary for the Respondent to remove the animals to alleviate their distress;
c. The Respondent’s decision to keep those animals in care was valid at the time it was made; and
d. Returning them would risk placing them back into distress.
59Pursuant to the powers of the Board under s.38(9) of the Act, the Board declines to make an order for the return of the animals to their owner, James White.
Released: July 17, 2023
Ashley Deathe
Adjudicator
Application for revocation of order
(3) An owner or custodian of an animal who receives an order from an animal welfare inspector may apply to the Board by notice in writing to have the order revoked if the animal has ceased to be in distress.
Application for return of animal
(4) An owner or custodian of an animal that has been kept in or taken into the Chief Animal Welfare
Inspector’s care may apply to the Board by notice in writing to have the animal returned if the conditions that caused the animal to be kept in or taken into the Chief Animal Welfare Inspector’s care have ceased to exist.
[Emphasis Added].
Footnotes
- Section 38 (3) - (4) of the Act is reproduced below:
- The removal of the 2 Dove Type Birds on March 14, 2023, is not part of this appeal.