Sauer v. Chief Animal Welfare Inspector, 2023 ONACRB 57

Court File and Parties

Date: 2023-10-10

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

Between:

Brenda Sauer Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Edgar-Andre Montigny, Member

For the Appellant: Brenda Sauer, Self-represented For the Respondent: Danielle Meuleman, Counsel

Observers: Alisa Chapnlick, Ziba Heydarian, Andrew Gawur, Meryn Steeves

Heard By Videoconference: September 14 and September 15, 2023

OVERVIEW

1. On June 22, 2023, Inspector Callea Baese (“Inspector Baese”) of Animal Welfare Services (“AWS”, “Respondent”), executed a distress warrant on Brenda Sauer (“Appellant”) to search her home at 92 Crosby Drive in Kitchener, Ontario, (“Home”) and to take necessary action to relieve animals at the premises of distress. Inspector Baese issued a Notice of Removal (“NOR”) on the Appellant pursuant to sec. 31(5) of the Provincial Animal Welfare Services Act, 2019 (“PAWS Act”)¹ and removed 23 dogs and 1 kitten.

2. On June 27, 2023, a Decision to Keep an Animal in the Chief Animal Welfare Inspector’s Care (DTK # 1) was served on the Appellant. DTK #1 dealt with the 23 dogs and 1 kitten removed from the Home on June 22, 2023.

3. On June 29, 2023, a Statement of Account (“SOA #1”) in the amount of $15,542.85 was served on the Appellant for the purpose of recovering costs of the CAWI of providing necessities for the above noted animals.

4. On July 19, 2023, Inspector Bease removed an additional 4 dogs from the Home on the basis that the conditions in the home were the same as those observed on June 22, 2023, and therefore the animals were found to be in distress and the distress necessitated their removal from the Home.

5. On July 25, 2023, a Decision to Keep an Animal in the Chief Animal Welfare Inspector’s Care and a Statement of Account (“SOA #2”) in the amount of $2,371.15, was served on the Appellant for the purpose of recovering the costs of the CAWI of providing necessities to the 4 dogs removed from the Home on July 19, 2023.

6. On July 26, 2023, a further Statement of Account (“SOA #3”) was issued in the amount of 18,315.95, for the continued care of the 23 dogs and one cat removed on June 22, 2023, and served on the Appellant.

7. On August 22, 2023, a Decision to Keep an Animal in the Chief Animal Welfare Inspector’s Care (“DTK # 2”) was served on the Appellant concerning 2 puppies born while the mother (one of the 23 dogs removed from the Home on June 22, 2023) was in CAWI’s care.

8. The Appellant appealed DTK #1 (ACRB File 15055) and SOA #1 (ACRB File # 150056) to the Animal Care Review Board (“Board”) on July 5, 2023.

9. The Appellant appealed SOA # 2 and the Decision to Keep an Animal in the Chief Animal Welfare Inspector’s Care (for the 4 dogs removed on July 19) (ACRB file # 15086) to the Board on July 27, 2023.

10. The Appellant appealed DTK #2 (ACRB File # 15171) to the Board on August 22, 2023.

11. The Appellant appealed SOA #3, dated July 26, 2023, to the Board on August 16, 2023. This appeal was not accepted as it filed beyond the statutory appeal period of 5 business days, as outlined by s. 38 of the PAWS Act.

12. A hearing was scheduled for August 24 and August 25, 2023, to hear ACRB Files # 15055 and 15056. The hearing was adjourned at the request of the Appellant. The hearing was re-scheduled to September 14 and September 15, 2023. It was also decided that Appeals 15171 and 15086 would be heard together with the above matters at the case conference.

13. Prior to the hearing of these appeals, the Respondent filed a Notice of Motion with the Board to dismiss the Appellant’s appeal of DTK #1 because SOA #3 had not been paid by the due date. Section 35 (1) to (4) of the PAWS Act outlines that if a SOA is not either appealed or paid within the prescribed periods, the animals subject to the SOA are forfeited to the Crown. Once animals are forfeited, the Board no longer has any remedy to offer an appellant. Pursuant to Section 38(9) of the PAWS Act, The Board can only order an animal returned to its “owner or custodian”. After forfeiture, an Appellant is no longer “an owner or custodian” of the animals in question. The Respondent’s Motion was granted.² Therefore File 15055 is no longer before this Board.

14. Nevertheless, the facts relevant to File 15055 are important to gain a full understanding of the current appeals. As the Respondent pointed out, the information gained during initial visits to the house and the removal of the animals included in File 15055, was used in subsequent visits to confirm whether there had been any change in the home. It is necessary, therefore, to present these specific appeals within the context of the larger overall situation.

ISSUES IN DISPUTE

15. The issues in dispute in this matter are:

• Should the animals subject to DTK #2 be returned to the Appellant.
• Should SOA #1, Issued June 29, 2023, in the amount of $15,542.85, be confirmed, revoked or varied?
• Should SOA #2, issued on July 25, 2023, in the amount of $2,371.15, be confirmed, revoked or varied?

RESULT

16. For the reasons that follow, the Board:

• Dismisses the appellant’s appeal for the return of the animals.
• Confirms the Statement of Account (SOA #1) issued on June 29, 2023.
• Confirms the Statement of Account (SOA #2) issued on July 25, 2023.

ANALYSIS

17. Geddes v. Chief Animal Welfare Inspector,³ confirms that the appellant bears the onus in these appeals. The appellant must establish on a balance of probabilities that the animals removed on December 10, 2022, and subsequently taken into the Chief Animal Welfare Inspector’s care should be returned to her.⁴

18. The respondent is required to show on a balance of probabilities that the basis the decisions met the test for reasonable grounds as captured in s. 31(1) and 31(6) of the PAWS Act.

Removal

19. The appellant’s position was that the removal of her animals was not in accordance with the PAWS Act because:

• The animals were being fed, sheltered and cared for. The condition of the home was not sufficient to put the animals in distress.

She presented similar arguments concerning the decisions to Keep in Care.

20. A decision to remove an animal is tied to the definition of distress. Distress is defined in s. 1(1) of the PAWS Act as being:

a. In need of proper care, water, food, or shelter b. Injured sick, in pain or suffering; or c. Abused or subject to undue physical or psychological hardship, privation or neglect.

21. O. Reg/19, Standards of Care and Administrative Requirements⁵ (The Regulation) provides minimum care standards. For example, s. 3(1) regarding adequate and appropriate food and water; s. 3(3) care necessary to general welfare; s. 3(5) adequate and appropriate resting and sleeping areas; s. 3(6) concerning adequate space to move naturally and exercise, sanitary conditions and ventilation; and s. 3(7) regarding the need for a pen or other enclosed structure in which animals are kept to be in good repair.

22. In Pryde v. CAWI, 2022 ONSC 6632⁶, the Divisional Court found that “owners are required to comply with the minimum standards prescribed in the PAWS Act and the Regulation, and if they do not, their animals are, by definition, in distress”.

23. Section 31(1) of the PAWS Act allows an inspector to remove an animal from a place and take possession of it for the purposes of providing it with necessities to relieve distress where (paraphrased):

a) a veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal: b) the inspector has inspected the animal and has reasonable grounds tor believing the animal is in distress and the owner is not present and can’t be found promptly; or c) an order respecting the animal has been made under s. 30 of the PAWS Act and has not been complied with.

24. Inspector Baese testified that she was present to inspect the Home on June 22, 2023, and again on July 19, 2023. She confirmed that the conditions were very similar on both dates. She also consulted a veterinarian, Dr. Robertson, by video, to obtain his professional opinion as the whether the conditions in the Home created a situation that placed the animals in distress. Dr. Robertson confirmed the animals were in distress necessitating their removal to alleviate the distress.

25. Upon entering the Home on June 22, 23023, Inspector Bease described “an overwhelming obnoxious pungent smell of urine and feces.” She noted that the Home was piled with “garbage and debris”. She noted that there were many dogs seen throughout the home.

26. Inspector Baese identified a number of photos taken on June 22, 2023, by herself or by other AWS Inspectors who took part in the inspection of the Home. Inspector. Baese identified each photo, noted which room of the Home was depicted and described the contents of the rooms as shown in the photos. The photos showed the living room, kitchen, bedrooms, bathroom and basement areas of the Home. In every photograph Inspector Bease could identify piles of debris and garbage as well as feces and urine stains. Some photos showed the basement floor covered with a dark thick liquid. There were dogs in many of the photos. Inspector Bease was able to point out dogs whose fur was wet from sitting urine or other substances.

27. Inspector Baese testified that the conditions in the Home on July 19, 2023, were very similar to those she encountered on June 22, 2023. She demonstrated that the conditions in the Home on both June 22, 2023 and July 19, 2023 did not meet the relevant Standards of Care in the Regulation, particular section 3(6) concerning sanitary conditions and adequate space.

28. Dr Farr, a veterinarian and Medical Director of the Hamilton-Burlington Society for the Protection of Animals (SPCA), testified that she examined the 23 animals that were removed from the Home on June 22, 2023. She noted that the animals were soiled and smelled of urine; many had long nails and matted coats. Many were anxious. Some showed signs of dermatological infections. She nevertheless noted that overall the dogs were in good condition. She noted that she also examined the 4 dogs brought in on July 19. She found them in similar condition.

29. Dr. Farr’s testimony confirmed that condition of the dogs indicated that the level of care provided to the animals failed to meet the minimum standards of care required under the PAWS Act.

30. On cross-examination the Appellant acknowledged that the conditions in the home were unsafe for the animals.

Decision to Keep in Care

31. Section 31(6) of the PAWS Act provides that the respondent Chief Animal Welfare Inspector may decide to keep an animal that was removed under subsection 31(1) in its care if:

(a) the Chief Animal Welfare Inspector determines it is necessary to relieve the animal’s distress; or (b) the Chief Animal Welfare Inspector has reasonable grounds to believe that, (i) the animal may be placed in distress if returned to its owner or custodian, or (ii) the animal may be trained to fight another animal if returned to its owner or custodian.

32. AWS Regional Supervisor Eloise Jones (“RS Jones”) testified that, on behalf of the CAWI, she made the June 27, 2023 Decision to Keep in Care based on the information provided to her by Inspector Baese, including photographs, concerning the conditions in the Home. RS Jones decided that the conditions in the Home were such that returning the animals to the Home may place them in distress.

33. RS Jones also testified that the decision to Keep in Care was made for the two puppies (born on August 2, 2023 to one of the animals already taken into care) based on the fact that the puppies were too young to be removed from their mother; doing so would place the puppies in distress.

34. The Appellant cross-examined all three of the Respondent’s witnesses. She questioned the definition of distress. She questioned whether an animal could be in distress if it was being fed and sheltered. The Appellant did not challenge or undermine the testimony of any of the witnesses concerning the conditions in the Home or the condition of the animals.

35. The Appellant presented her two daughters as witnesses. The witness statement of a third witness, her brother, was read by the Appellant, as the witness unable to testify.

36. The Appellant and her witnesses articulated the impact the removal of the animals had on them. No witness offered any evidence concerning the care of the animals. Neither of the two daughters could, despite living in the Home, could recall how many dogs were in the home. Both made guesses that were off by some 8-10 animals.

37. On cross-examination the Appellant herself acknowledged that she was not able to properly care for 23 or more animals.

38. The Board finds the removal of animals on June 22, 2023, and July 19, 2023, as well as the decisions to keep those animals in care, were in made in accordance with the PAWS Act. The evidence of the unsanitary conditions in the Home is sufficient to demonstrate the animals were in distress.

39. The Appellant presented photographs of the Home to demonstrate that that the conditions in the Home have improved. She testified that she has made efforts to clean the home, remove debris, repair plumbing, and improve the overall sanitary conditions in the home.

40. Unfortunately, the evidence presented, in itself, was not sufficient to confirm whether an animal returned to the Home would no longer be placed in distress. The photos only showed the ground floor. There was no evidence that the upstairs had been cleaned. There was little evidence to demonstrate clearly that problems with plumbing, sewage and leakage in the basement had been entirely resolved. Despite the evidence that some effort has bene made to clean the home, given the extreme nature of the conditions in the home earlier, more evidence is required to show that, a) the entire home has been cleaned and that; b) the change is real and lasting, and that any animals returned to the Home would not be placed in distress.

STATEMENTS OF ACCOUNT

41. Section 38 (9) 3 of the PAWS Act states that the Board may:

3. confirm, revoke or vary a statement of account served under s. 35(1).

42. Where AWS has provided an animal with necessities to relieve its distress or where the CAWI has taken an animal into the CAWI care, Section 35 of the PAWS Act allows the CAWI to serve upon owner or custodian of an animal a statement of account respecting the cost of necessities.

43. The respondent submitted that the SOA #1, (for a total of $15,542.85) and SOA #2 (for a total of $1,731.25) covered costs of providing necessities to the 23 dogs and one cat removed from the property on June 22, 2023 and the 4 dogs removed from the home on July 19, 2023.

44. Inspector Baese and Regional Supervisor Jones testified as to the content of SAO #1 and #3 confirming when they were issued and served upon the Appellant. Dr. Farr testified as to the veterinary services provided. Together, the AWS witnesses confirmed that the SOA’s covered services and necessities, such as food and shelter, and necessary veterinary care and treatment.

45. Veterinarian Dr Farr produced a detailed report on what veterinary services were provided to each animal and what costs were charged. During her testimony, she explained the reasons for providing grooming, nail clipping and baths to the dogs. She explained what tests were performed and why the tests were necessary.

46. On cross-examination the Appellant sought clarifications from Dr Farr, but she did not challenge the basic services provided to the animals or the fees related to those services.

47. The Board finds that the charges included in SOA #1 and SOA #2 were reasonable and necessary to relieve the animals’ distress and to provide necessities. The appellant has not demonstrated that any of the charges were unnecessary or excessive. Therefore, both SOA #1 and SOA #2 are confirmed.

ORDER

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

• Confirms the Decision to Keep in Care (for the two 2 puppies)
• Confirms SOA #1 issued June 27, 2023, SOA in the amount of $15,482.85
• Confirms SOA # 2 issued July 27, 2023, in the amount of $1,731.25.

Released: October 10, 2023

Edgar-Andre Montigny, Member

Footnotes

1. 1Provincial Animal Welfare Services Act, 2019, R.O. 2019, Chapter 13.
2. 2See 2023 ONACRB 15055, dated September 7, 2023.
3. 3Geddes v. Chief Animal Welfare Inspector, 2022 ONACRB 31 (, a paras 17-19
4. 4There was some mention that not all animals in the Home belonged to the Appellant. She confirmed that she had taken responsibility for all the animals.
5. 5O. Reg 444/119 Standards of Care and Administrative Requirements, made under the Provincial Animal Welfare Services Act, 2019, shoo. 2019, c. 13.
6. 6Pryde v. CAWI, 2022 ONSC 6632, at para. 16.