Lynn Freeman v. Chief Animal Welfare Inspector, 2023 ONACRB 54

Animal Care Review Board

Date: 2023-09-05

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

Between:

Lynn Freeman Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Peter Simmons, Member

Appearances:

For the Appellants: Lynn Freeman, Self-represented For the Respondent: Jason Kirsh, Counsel; Riel Hishon, Counsel Victoria Crocker, Regional Supervisor, Connie Mallory, Regional Supervisor (part), Christopher Chew, Inspector (part), and Rachel Falls, Inspector, Animal Welfare Services

Heard By Teleconference: July 13 and 14, 2023

OVERVIEW

1On May 10, 2023, Animal Welfare Services (“AWS”) removed 40 cats from Lynn Freeman’s (the “appellant”) home on the basis that the cats were in distress. Past Compliance Orders from February 8 and 16, 2023, March 21, 2023, and April 5, 2023, had not been complied with, and a veterinarian advised the cats be removed to alleviate distress.¹ Some cats (number unknown) remained at the appellant’s home because they could not be captured.

2On June 15, 2023, AWS Inspector Rachel Falls (“Inspector Falls”) issued a second Notice of Removal (“NOR #2”) on the appellant for the further removal of 9 cats of various types, ages, colours, and sexes for reasons similar to those of the May 10, 2023, removal. These 9 cats were in distress, a veterinarian had advised that they be removed, and past Compliance Orders from February 16, 2023, March 21, 2023, and May 10, 2023, had not been complied with. On June 21, 2023, AWS issued a third Notice of Removal (the “NOR #3”) on the appellant for the further removal of an additional 15 cats of various types, ages, colours and sexes because Compliance Orders from March 21, 2023, and May 10, 2023, had not been complied with.

3The cats from the second and third removals were placed in various boarding facilities. Some cats (number unknown) remained in the appellant’s home after the June 21, 2023, removal because they evaded capture.

4On June 16, 2023, Inspector Falls served a Notice of Decision of the Chief Animal Welfare Inspector (“CAWI”) to Keep an Animal in the CAWI’s Care (the “DTK #1”) on the appellant for the 9 cats removed on June 15, 2023.

5On June 22, 2023, Inspector Falls served a second Notice of Decision of the Chief Animal Welfare Inspector to Keep an Animal in the CAWI’s Care (the “DTK #2) on the appellant for the 15 cats removed on June 21, 2023.

6A Compliance Order to provide litter substrate to all the litter boxes in the home was served on the appellant by Inspector Falls on June 22, 2023, with a compliance date of June 29, 2023.

7The appellant has appealed NOR #2, NOR #3, DTK #1, DTK #2, and the Compliance Order issued by Inspector Falls.

8A teleconference hearing on all the matters occurred July 13 and 14, 2023.

THE ISSUES

9The issues in dispute in this matter are:

1. Was the removal of 9 cats on June 15, 2023, and the removal of 15 cats on June 21, 2023, necessary to alleviate distress?
2. Should the 9 cats removed on June 15, 2023, and the 15 cats removed on June 21, 2023, be returned to the appellant?
3. Was the Compliance Order issued June 22, 2023, to provide a litter substrate for all litter boxes in the home by June 29, 2023, necessary to alleviate distress?

RESULT

10For the reasons that follow, the Board:

1. Dismisses the appellant’s appeal of NOR #2 and NOR #3;
2. Dismisses the appellant’s appeal of DTK #1 and DTK#2; and
3. Dismisses the appellant’s appeal of the Order to provide litter substrate.

PRELIMINARY MATTERS

11At the case conference of July 5, 2023, NOR #3 (ACRB File 15027) was joined to NOR #2 (ACRB File 14999), DTK #1 (ACRB File 15006), Compliance Order (ACRB File 15007), and DTK #2 (ACRB File 15008). The parties agreed that the matters are all related, and that the evidence can be consolidated for continuous functional circumstances. They consented to hearing the matters together and to the order of proceedings with the respondent presenting their witnesses and evidence first.

EVIDENCE AND ANALYSIS

Issue 1 - Was the removal of 9 cats on June 15, 2023, and 15 cats on June 22, 2023, necessary to relieve them of distress?

12I find that both the removal of 9 cats on June 15, 2023, and the removal of 15 cats on June 22, 2023, was necessary to relieve them of distress. I find further that the removals were done in accordance with Section 31(1)(a) of the Provincial Animal Welfare Services Act, 2019 (“Act”)², as a veterinarian provided Inspector Falls with a signed Certificate of a Veterinarian Advising the Removal or Euthanasia of an Animal (the “Certificate”), and also in accordance with Section 31(1)(c) of the Act because previous orders issued by AWS from February 16, 2023, March 21, 2023 and May 10, 2023, made under Section 30 of the Act, which are not part of this hearing, had not been complied with, therefore resulting in distress.

Non-compliance with previously issued Orders – home environment

13Inspector Falls attended the appellant’s home on June 15, 2023, as a follow-up inspection to previously issued AWS Compliance Orders issued on March 21, 2023 and May 10, 2023, which had required the appellant to repair holes in the ceiling to prevent the cats from entering the space, and to provide a clean and sanitary environment for all cats in the dwelling. Inspector Falls testified she observed holes in the ceiling, urine and diarrhea containing blood on the floor, feces on the walls and water tank, feces in the attic space and on top of a cabinet, and dried cat urine on a cat carrier and bed linens. She testified that the Compliance Order dated March 21, 2023, to repair holes in the ceiling, had not been complied with.³ Inspector Falls further testified that she observed an estimated 6-8 cats in the ceiling space of the appellant’s home which could not be removed on June 15, 2023 because the cats could be captured.

14Inspector Falls further testified that when she returned to the appellant’s home on June 21, 2023, to inspect for compliance of previously issued Compliance Orders, there were an additional 12 cats⁴ in the ceiling space which measured 36-37 degrees Celsius.

15Inspector Falls testified that while the appellant had done some cleaning of the home, urine and feces remained on the floor as of June 21, 2023, and the unsanitary conditions of the appellant’s home that had been ordered improved on May 10, 2023, had not been fully, or satisfactorily, complied with. She also testified that approximately 8 litter boxes were in the home, 3-4 of which had some litter substrate, and she observed urine and bloody diarrhea around the boxes.

16The respondent provided photographic evidence showing the extent of the unsanitary conditions such as feces on the floor, empty litter boxes, litter boxes with limited substrate, and a rudimentary/temporary repair to a ceiling opening.

17Dr. Patricia Lechten (“Dr. Lechten”) was asked by AWS to attend the appellant’s home with Inspector Falls on June 15, 2023. She testified that she noticed a very strong smell of ammonia and cat urine in the home and observed a cat carrier covered with dry cat urine, holes in the ceiling, and litter boxes throughout the home most without litter substrate. She testified that she observed feces with blood in one litter box, which, she said is typically a result of parasites. Dr. Lechten testified that cats prefer to relieve themselves in private, and a lack of substrate in a litter box is both frustrating and stressful for them.

18Dr. Lechten further testified that the home was not suitable for the cats because of its unsanitary condition and recommended that the cats be removed.

19Dr. Lechten testified that she could hear cats in the attic, noting that attics are especially problematic for kittens because they are too small to escape the space on their own if necessary and are effectively trapped.

20The appellant submitted that she completed a previously issued Compliance Order issued by AWS on March 21, 2023, to repair holes in her ceiling and walls, and that she was not aware of anything outstanding.

21The appellant submitted that she has multiple litter boxes throughout her home and had litter substrate in her house. She provided photographic evidence showing litter boxes and a photograph of litter in a supply store. She said she buys litter from only one supplier, and that supply was limited.

22The appellant submitted that she provides good care to her cats, that her cats were not in distress and removal was unjustified. She submitted that the feces and urine in her home are a “one-off” and her cats “…do not normally do this.” She said, “…there are animals, there is excrement.” She further submitted that the cats defecate because they are under stress which is brought on by AWS visits, and that not cleaning the litter boxes is a “temporary lapse” on her part.

23Under cross examination about the number of litter boxes, Dr. Lechten testified that if the cats are using the litter boxes, they would not be empty (of feces). She also said the general rule of thumb for the number of litter boxes in a home is that they should equal the number of cats plus 1.

24I was persuaded by the respondent’s testimony and photograph evidence from June 15, 2023 that the past AWS Compliance Orders dated March 21, 2023 requiring the appellant to repair holes in the ceiling to prevent the cats from accessing the space, and that of May 10, 2023 requiring her to provide a sanitary environment for her cats, were not complied with.

25I was further persuaded that the appellant had litter boxes in her home some of which had litter substrate while others had little, or none.

Non-compliance with previously issued Compliance Orders involving veterinary examinations

26Inspector Falls testified that one of the cats captured on June 15, 2023 for assessment by Dr. Lechten was a cat with an apparent ruptured eye that she concluded was the cat the appellant was ordered on February 16, 2023 to have seen by a veterinarian, which as of June 15, 2023, the appellant had not done.

27Dr. Lechten testified that she visually examined 3 cats. One had an eye issue that she said was likely injury related. A second cat had no visible issues, and a third cat had respiratory issues, a misshapen jaw and was possibly pregnant.

28Dr. Lechten testified that all the cats in the home were stressed and in need of examination to be checked for viruses and infections.

29Under cross examination about where she examined the cats, Dr. Lechten testified that she visually examined the 3 cats outside the appellant’s home in their respective crates.

30Prior to leaving the appellant’s home on June 15, 2023, Dr. Lechten signed the Certificate advising the removal of all cats in the home to alleviate them of distress.

31The appellant submitted that she has taken her cats to veterinarian clinics, and that she had provided her cats with medication. She provided an undated photograph of cats in a veterinarian clinic room, and photographic evidence of veterinary clinic invoices, estimates, and proof of payment for 4 cats and 3 kittens from January 2023, February 2023, March 2023, and April 2023 as well as veterinarian’s instructions, and proof of rabies vaccination for 1 cat from September 2022. She also provided photographs of email communication with humane societies from 2021 that included discussions about spaying and neutering.

32I am persuaded by the testimony of Inspector Falls that she saw a cat on June 15, 2023, with an eye injury that was the same cat the appellant was ordered to take to a veterinarian on February 16, 2023, which had not been done by the due date of March 1, 2023.

33I am also persuaded that the cats were in distress, and removal of them was for the purpose of providing them with necessaries to relieve their distress.

34While the appellant provided evidence of veterinarian visits as recently as April 2023, none of the evidence established that the cat ordered to be seen from February 16, 2023 was included in any of the visits in 2023.

35I find that the respondent issued the two NORs pursuant to Section 31 of the Act.⁵ In particular, a veterinarian had signed a certificate recommending removal of the cats, and orders from February 16, 2023, March 21, 2023, and May 10, 2023, were not complied with by the ordered dates.

36Based on the testimony and evidence before me I find that the removal of cats on June 15, 2023 and June 21, 203 were done in accordance with the Act, and for the purposes of alleviating distress on the basis that the appellant had not complied with previous Compliance Orders requiring home repairs and providing a sanitary environment for the cats, and for a cat to be seen by a veterinarian.

Issue 2 - Should the 9 cats removed on June 15, 2023, and 15 cats removed on June 22, 2023, be returned to the appellant?

37I find that the 9 cats removed on June 15, 2023, and the 15 cats removed on June 22, 2023, should not be returned to the appellant. I find further that the respondent had reasonable grounds to believe that the cats may be placed in distress if returned to the appellant pursuant to Section 31 (6)(b)(i) of the Act.

38Inspector Falls served two DTKs on the appellant on the days following the removals, specifically on June 16, 2023, and June 22, 2023. Regional Supervisor Christopher Chew (“Regional Supervisor Chew”) testified that he based his decisions to issue DTKs on AWS inspection report summaries, non-compliance with past Compliance Orders, and other contributing circumstances. The reasons supporting the DTK of June 16, 2023, and that of June 22, 2023, are the same and they include:

1. The appellant’s history of non-compliance of previously issued AWS Compliance Orders (February 16, 2023, March 21, 2023, May 10, 2023);
2. AWS had removed 51 cats from the appellant’s home as of June 21, and 66 cats as of June 22, 2023;⁶
3. The appellant had not complied with a past Compliance Order for her to take a cat to a veterinarian, and to follow the veterinarian’s recommendations. She had also taken the wrong cat to be seen by a veterinarian;
4. Cats have died due to the appellant not complying with past Compliance Orders to seek veterinarian care by the ordered deadline, which contributed to a high mortality rate among the cats previously removed from the appellant’s home;
5. There are outstanding medical and health concerns involving previously removed cats which require continued treatment including oral/dental care, ruptured eyes, and respiratory issues that are potentially contagious;
6. The appellant’s home is unsanitary and lacks adequate litter boxes. Compliance Orders requiring that the home be sanitary, and a Compliance Order to repair holes in the ceiling have not been complied with;
7. Five cats removed from the appellant’s home were pregnant, and three litters of cats have been born in AWS care since the removals;
8. The appellant refuses to surrender her cats or consider alternatives to controlling her increasing cat population.

39The appellant submitted that her cats should be returned to her, stating that the cats were not in distress and should not have been removed. She submitted that she provides a good home, and her cats need her.

40The appellant submitted that she repaired the holes in her home as previously ordered. She also submitted that she has cleaned her home and has 20 litter boxes in the house. The appellant submitted she has taken her cats to veterinary clinics and purchased medication as prescribed by the veterinarians, which is in accordance with a previously issued AWS order.

41The respondent submitted that minimum standards of care⁷ are not being met by the appellant and the lack of proper care amounts to distress.⁸

42The respondent submitted that they require reasonable grounds to believe the appellant’s cats will not be placed in distress if returned to her. They submitted eight specific reasons to support their grounds for not returning the appellant’s cats. Testimony from Inspector Falls who identified the injured cat from February 16, 2023 that had not been seen by a veterinarian. as ordered by AWS, is also compelling.

43The appellant provided no evidence that her cats, if returned, would not be returning to the same environment from which they were removed, or that it has significantly changed. She provided no assurances that she would comply with past AWS Compliance Orders, or has a plan to do so, including that her cats be seen by veterinarians. The appellant’s lack of compliance, and her unwillingness to participate in conversations with AWS to address a persistent problem of a growing cat colony population in her home places her cats at risk of further distress due to unsanitary conditions if returned.

44I find that s. 31(6) of the Act provides the respondent the authority to keep the appellant’s cats in care. The respondent has provided credible and persuasive evidence to support their grounds that the appellant’s cats may be placed in distress if returned to her, which is contrary to s. 15 of the Act.⁹

Issue 3 - Was the Order of June 22, 2023, to provide litter substrate necessary to alleviate distress?

45I find that the Compliance Order to provide litter substrate in the litter boxes was necessary to alleviate distress.

46The respondent submitted that litter substrate was required immediately because the conditions in the appellant’s home had not improved from Inspector Fall’s last inspection on June 15, 2023, when feces and urine were observed on the floor and furniture. The respondent submitted that the appellant had previously been ordered on May 10, 2023, to provide a sanitary environment for her cats. Inspector Falls testified that litter substrate has been an ongoing issue with the appellant, and she provided photographic evidence showing litter boxes the majority of which were empty and others with very little substrate.

47The respondent submitted that the absence of adequate litter substrate causes distress among the cats as it contributes to psychological hardship. The respondent submitted that a lack of litter substrate is also an indicator that the cats are relieving themselves elsewhere such as on the floors and furniture. The respondent submitted that by not providing adequate litter substrate, the appellant is not providing proper care to her cats.

48The appellant submitted that she always has 20 litter boxes in her home. She referenced photographic evidence that showed 4 litter boxes side by side with litter substrate. The appellant also submitted that she had purchased litter and showed a photo of unopened litter bags at a supply store but said there are “…supply chain issues.” She provided an email from 2022 of an exchange between her and a litter supplier in which she was referred to the Canadian division of the company, but she provided nothing more recent nor proof of litter purchase.

49In response to my question to the appellant regarding how many cats she had in her home, she declined to answer.

50I find that the respondent has the authority to issue orders to alleviate distress pursuant to Section 30(1) of the Act including ordering substrate to litter boxes to ensure appropriate sanitary conditions.¹⁰

51I find further that the number of cats remaining in the appellant’s home cannot be established. The respondent testified that an estimated 8 cats remained at the appellant’s home after the June 15, 2023, removal because they could not be captured, and an estimated 4 cats remained at the appellant’s home after the June 21, 2023, removal because they too could not be captured. The appellant testified that she has 8-10 litter boxes in her home, 4 of which contained litter substrate. I am not persuaded by the appellant’s argument that supply chain issues at one particular point of sale is a reason for not providing substrate in all the litter boxes. The Compliance Order to provide substrate to the 8-10 litter boxes is reasonable given that there appears to be a minimum of 8 cats at the appellant’s home, and it will provide some distress relief to those remaining cats.

SUMMARY

52The following is a summary of the findings of the 5 appeal files heard together at this hearing:

1. An inspector has the authority to remove animals and issue NORs pursuant to Section 31 of the Act. AWS issued 2 NORs on the appellant; on June 15, 2023, and June 21, 2023, because a veterinarian had provided a certificate advising the removal of the cats, and because past AWS Compliance Orders had not been complied with. The removal of the cats was for the purpose of providing them with necessaries to relieve their distress, and the appellant did not provide any persuasive evidence that she had complied with past orders.
2. Section 31(6) of the Act provides the Chief Animal Welfare Inspector the authority to keep the appellant’s cats in care¹¹ if there are reasonable grounds to believe the appellant’s cats may be placed in distress if returned to her. The respondent’s evidence was persuasive that they had such reasonable grounds.
3. The condition of the appellant’s home has not changed since she was ordered to make repairs in March 2023. Returning the cats to that environment along with other contributing conditions such as an unsanitary home would be placing them back into a situation of distress. The appellant provided no persuasive or compelling evidence that the conditions that caused distress and led to the cats’ removal had improved or would be improved to alleviate distress for her cats.
4. An Inspector has the authority to issue orders to alleviate distress pursuant to Section 30(1) of the Act including ordering litter substrate. Requiring 8-10 litter boxes to have litter substrate is reasonable and within the purview of the respondent to order to alleviate and mitigate the distress for the remaining cats at the appellant’s home.

ORDER

53Pursuant to the powers of the Board under s. 38(9) of the Act, the Board:

1. Dismisses the appeal of the NOR #2 dated June 15, 2023, and NOR#3 dated June 21, 2023;
2. Dismisses the appeal of the DTK#1 dated June 16, 2023, and DTK #2 dated June 22, 2023;
3. Dismisses the appeal of the Order to Owner dated June 22, 2022.

Footnotes

1. 1A Notice of Removal (NOR #1) concerning 40 cats had been served on the appellant by AWS on May 10, 2023, pursuant to Sections 31(1)(a) and (c) of the Provincial Animal Welfare Services (PAWS) Act, 2019. The appeal of that removal is not part of this hearing.
2. 2S.O. 2019, c. 13
3. 3Compliance Order of March 21, 2023 issued pursuant to PAWS Act, 2019, s.30(1).
4. 4Including 1 cat that may have been carrying a kitten
5. 5PAWS Act, 2019, S. 31(1)(a) and (c)
6. 6The number of cats removed became 66 as of June 23, 2023. The referenced number of 55 is that used for the issuance of NOR #2 on June 15, 2023.
7. 7O.Reg.444/19 Standards of Care and Administrative Requirements, s. 3 under PAWS Act, 2019, S.O. 2019, c. 13
8. 8Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632 paragraph 52
9. 9Pryde v CAWI, 2022 ONSC 6632 paragraph 81, and R. v. Sadikov, 2014 ONCA 72
10. 10O.Reg. 444/19 s. 3
11. 11S.O. 2019, S.31(6)