Jamshid Hadioonzadeh v. Chief Animal Welfare Inspector, 2023 ONACRB 59

Date: 2023-10-18

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

Between:

Jamshid Hadioonzadeh

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicators: Peter Simmons, Member Ziba Heydarian, Vice-Chair

Appearances:

For the Appellant: Jamshid Hadioonzadeh, Self-Represented

For the Respondent: Jason Kirsh, Counsel; Victoria Crocker, Regional Supervisor, Animal Welfare Services (AWS); Connie Mallory, Regional Supervisor, AWS; Linsey Hay, Senior Investigator, AWS; Brittany Eade, Inspector, AWS;

Heard By Videoconference: August 28, 2023

OVERVIEW

1On July 20, 2023, Inspector Brittany Eade (“Inspector Eade”) of Animal Welfare Services (AWS, hereinafter referred to as the “Respondent”) attended 14108 Yonge Street, Aurora, Ontario (the “Property”) to execute a search warrant. The search warrant was obtained after the Respondent received a complaint regarding the safety and conditions in which animals were being kept at the Property. The Property is owned by Jamshid Hadioonzadeh (the ”Appellant”).

2Inspector Eade testified that she called the Appellant and left a voicemail because he was not home when AWS arrived. The Appellant returned home around 2:30 p.m. on July 20, 2023, as the search warrant was being executed.

3While AWS inspectors inspected the home, Inspector Eade served the Appellant with a Compliance Order pursuant to Section 30 of the Act at 3:17 p.m. ordering that he immediately provide clean, potable water to the dogs in the Quonset¹ hut on the Property, have those same dogs placed in an environment with adequate lighting and ventilation, and also ensure that any area where the dogs were to be housed should be clean of urine and feces. Inspector Eade said there was a sense of urgency to the Compliance Order due to the distress of the dogs and the environment they were in.

4On July 20, 2023, around 6:27 p.m., Inspector Eade served a Notice of Removal (the “NOR”) on the Appellant, which led to the removal of 47 dogs from the Property. The NOR was issued on the basis that the dogs were in distress, a veterinarian had issued a Certificate of a Veterinarian Advising the Removal or Euthanasia of an Animal (the “Certificate”) to alleviate the dogs’ distress,² and the Compliance Order had not been satisfied within the required timeline.

5The Appellant appealed the NOR to the Animal Care Review Board (the “Board”) on July 27, 2023.

6A Statement of Account (the “SOA”) in the amount of $15,333.42, was served on the Appellant on July 27, 2023, for costs incurred by AWS in providing care to the dogs removed on July 20, 2023.³

7The Board held a case conference on August 3, 2023, and the matter proceeded to a videoconference hearing on August 28, 2023 (the “Hearing”).

THE ISSUES

8The issues in dispute in this matter are:

1. Were the 47 dogs in distress on July 20, 2023?
2. If so, was it necessary to remove the 47 dogs from the Property to alleviate their distress?

RESULT

9For the reasons that follow, the Board:

1. Finds that the dogs were in distress on July 20, 2023, and;
2. Dismisses the Appellant’s appeal of the NOR.

PRELIMINARY MATTERS

Respondent’s motion to dismiss the appeal

10On August 24, 2023, the Respondent filed a Notice of Motion to dismiss the Appellant’s appeal to the Board. The ground for the dismissal was that the matter is moot because the Board has no remedy available to it. Specifically, the Respondent submitted that the Appellant did not file an appeal or pay the SOA within the prescribed period, and the dogs were then forfeited ten days after non-payment pursuant to s. 35(4) of the Provincial Animal Welfare Services Act, 2019, S.O. 1990, c. 13 (the “Act”).

11The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the “Rules”) requires that Notices of Motion be filed at least 10 days before the matter is to be considered.⁴ In this case, the Notice was submitted to the Board on Friday, August 24, 2023. The Hearing was scheduled 72 hours later, on Monday, August 28, 2023. The Board denied the Respondent’s motion because it was not filed in accordance with the Rules. Further, to allow the motion would be procedurally unfair to the Appellant, who would not have been afforded sufficient time to review the motion materials and prepare an adequate response in time for the Hearing. Further, no compelling reasons or exceptional circumstances were presented that persuaded the Board to hear the motion.

Consent for the co-chair to participate at the hearing.

12During the discussion of preliminary matters, the Respondent also raised an issue that the Hearing co-chair had observed the case conference of August 3, 2023. The Rules require the consent of the parties for a member (of the Board) who presides or otherwise takes part in a case conference to participate as a member of a panel at a subsequent hearing.⁵ The Hearing co-chair was an observer only at the case conference, was not an active participant, and did not make any orders or directions. Regardless, consent was given by both parties for this Member to sit as co-chair for the Hearing.

EVIDENCE AND ANALYSIS

Issue #1 - The 47 dogs were in distress on July 20, 2023

13Section 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

14Section 3 of the Standards of Care and Administrative Requirements Regulation, O.Reg.444/19 (the “Regulation”) sets out basic standards of care for all animals. The Regulation states that every animal must be provided with adequate and appropriate food and water, care for its general welfare, a proper resting and sleeping area, sanitary conditions, protection from the elements, and adequate space, light and ventilation.

15Owners of animals are required to comply with the minimum standards prescribed in the Act and in the Regulation. If they do not, the animals are by definition “in distress.”⁶

16The Board finds that the dogs were in distress on July 20, 2023, based upon the conditions in which the dogs were living at the Property as they do not meet the required and prescribed standards in the Act and Regulation.

17Inspector Eade testified that she and a team from AWS attended the Appellant’s property on July 20, 2023, in response to a complaint provided by the Town of Aurora about the conditions in which the dogs were kept.

18Inspector Eade testified that she executed the search warrant out of a sense of urgency, prior to the Appellant arriving home, firstly at a wooden building at the rear of the property where she found one dog. She said she noticed a strong ammonia odour in the building. She said that the floor was wet, and there was no visible water or food for the dog. She also said she removed the dog from the wooden shed to provide it with fresh air and a cool environment because of the poor ventilation and hot temperature inside the wooden building.

19Inspector Eade testified that she and other AWS members inspected a metal Quonset⁷ hut, which was also on the Property. She said that they found 17 dogs in a hot environment with an obvious ammonia odour. She said that she and inspectors observed dirty enclosures that housed the dogs, soiled bedding, feces on the floor, and inadequate lighting. She also said the water bowls had either unclean drinking water, or none at all.

20After leaving the Quonset hut, Inspector Eade said she called the Appellant again and advised him that AWS would be entering his home pursuant to a warrant. Inspector Eade testified that when she entered the home, she observed 4 dogs in a penned-in area on the ground floor with minimal water, a single bed soaked with urine, and feces pressed into the floor. She said that during her inspection of the basement of the home, she discovered 25 dogs, including 4 that were nursing their own litters. She also said there was no bedding for the dogs, no lighting or ventilation, and the floor was stained with dog urine and feces.

21Inspector Eade testified that she tested for ammonia. She said the ammonia test readings were 30-50 ppm⁸ in the Quonset hut, and 15-20 ppm in the basement of the home, both of which are high test numbers and above acceptable levels on the scale. She provided photographic evidence of the ammonia strip tests. Under cross examination, Inspector Eade stated that ammonia testing is commonly performed during inspections, but the ammonia strips are not sent to laboratories for analysis.

22Dr. Bruce Robertson, veterinarian, who was not on site at the time of the AWS inspection and warrant execution, testified that he determined the dogs were in distress based on phone calls, text messages, and photographs sent to him while AWS Inspectors were on scene. He said that AWS Inspectors described to him unsafe and unsanitary conditions, poor ventilation, a lack of water, darkness, high temperatures, and above acceptable ammonia levels. Dr. Robertson testified that he did not smell the ammonia odour himself, but the high test results of the ammonia test strips were conveyed through photographs that were sent to him by text message. He said that ammonia levels above 10 ppm cause discomfort and irritability in animals, deeming the conditions to be hazardous and unsanitary.

23The Appellant acknowledged having 47 dogs in the various buildings at the Property which consisted of his home, a Quonset hut and wooden shed. He said he cared for his dogs and believed his dogs were living in “good living conditions.”

24The Board was not persuaded by the Appellant’s testimony. When presented with evidence from the Respondent, or asked simple questions during cross examination, the Appellant provided evasive and unsupported responses including:

1. When shown photographs from the Respondent, the Appellant disagreed that the dogs had dirt and feces caked on their paws, or that several dog beds were wet with urine despite this being shown clearly in the photographs;
2. The Appellant testified that there were water bowls for the dogs, and the ones that were empty was because AWS had “kicked the bowls over.” He said he believed they did this even though he did not “see this with his eyes”;
3. The Appellant testified that he had two fans operating in the Quonset hut but said “someone turned them off.” However, he did not provide any evidence to support his argument. He also argued that there was accumulated dust on the fans only because it normally gets “blown around;”
4. The Appellant disagreed that the living conditions and floors of the dog cages were dirty and dusty when shown photographs, instead saying he saw “cement.” Later in his testimony, however, when asked by the Respondent if some areas where the dogs were kept had urine and feces on the floor, he agreed.
5. The Appellant testified that the dog cages were wet because he had cleaned them, but he did not provide evidence as to when he had done so. He testified that he was at a medical appointment when AWS arrived at his Property, which he said was approximately 30 minutes away. This meant the cages would have partially dried during the hour between the time he left for his appointment and returned.
6. The Appellant disagreed that the basement was dark despite the Respondent showing photographic evidence to the contrary. When the Respondent presented him photographs, the Appellant did not acknowledge that it was his basement where he was keeping at least 25 dogs. He also did not agree that the Respondent’s photographs showed a damaged floor with chipped and broken cement. Under cross examination, the Appellant said that the dogs in the cages were not necessarily his, but did not elaborate. He also argued under cross examination when shown photographic evidence of wet bedding that was used for the dogs that the Respondent was incorrect because there is a distinction between ‘hay’ and ‘straw.’

25The Respondent’s photographic evidence, and the testimony of Dr. Robertson, clearly demonstrate that the conditions where the dogs were being kept at the Property on July 20, 2023 were not clean; were unsanitary with feces and urine on the floors; drinking water was either absent or not potable; many of the dogs were soiled and dirty; the bedding was wet, urine soaked or not available; and that the cages and pens for the dogs in the wooden building, Quonset hut, and basement of the Property were dark and not adequately ventilated.

26For all of these reasons, the Board finds the dogs were in distress. The Respondent’s evidence shows the Appellant kept his dogs in unsanitary, poorly lit, unsafe, and inadequately ventilated environments contrary to the Act and Regulation, all of which contributed their distress. The Appellant provided no evidence to show that his dogs were not in distress, or that the conditions in which he kept them did not contribute to their distress.

Issue #2: The removal of the 47 dogs from the Property was necessary to relieve their distress

27Section 31 of the Act provides authority to AWS to remove and take possession of an animal in distress under certain conditions.

28The Board finds that the removal of 47 dogs on July 20, 2023, from the Property was necessary to relieve them of distress.

29The Board further finds that the removal was done in accordance with the Act. And while only one condition of Section 31(1) of the Act is required for removal, all three were found to be applied in this case, specifically;

1. There was a veterinarian signed Certificate advising that the removal of the dogs was required to relieve their distress as required by s. 31(1)(a);
2. The inspector conducted the inspection and had reasonable grounds to believe that the animals were in distress and the owner was not present and could not be found promptly as is required under s. 31(1)(b); and
3. Under Section 31(1)(c), an Order issued by AWS under Section 30 of the Act on July 20, 2023, had not been complied with.

30Dr. Robertson testified that his discussions with AWS on July 20, 2023, led him to conclude that there was no way to alleviate the dogs’ distress through temporary measures. As such, he signed the Certificate advising that the removal of all the dogs was necessary to alleviate distress and emailed it to Inspector Eade.

31Inspector Eade testified that the Appellant appeared willing to relocate some of the dogs into the Property, which seemed appropriate to accommodate up to the 17 dogs from the Quonset hut. However, when she inspected the 3rd floor of the Property for suitability, she found it to be 32 degrees Celsius, which is an unacceptable temperature for the dogs. Inspector Eade testified that the Appellant suggested relocating a portable air conditioner from the main floor to the 3rd floor to improve the temperature, which would have been helpful, but he never did so.

32The Appellant acknowledged that he was given a copy of the Compliance Order but denied that it was explained to him. He agreed that it was 32 degrees Celsius on the upper floor of his home and that he wanted to move an air conditioning unit to that floor, but he said he did not have enough time to do so. The Appellant argued that he was given only 30 minutes to comply with the Order and that his request for more time was denied.

33The Compliance Order served on the Appellant is not before the Board, but it is cited by the Respondent as one of three reasons, further outlined in paragraph 29 above, to support the issuance of the NOR. On its own, the Compliance Order may not have met the test to support a NOR given how little time the Appellant was given to comply and was, therefore, given limited weight in this decision.

34The Appellant provided no evidence that the conditions and environment were anything other than that shown by the Respondent, which is well below the minimum and acceptable standard of care required by the Act and the Regulation.⁹

35The Appellant submitted that he is willing to do “whatever they (AWS) say” to get his dogs back. He has not, however, provided any plans, taken any steps, communicated his attempts, or indicated any commitment to change or improve the conditions where any of his dogs were kept.

DECISION

36Pursuant to the powers of the Board under s. 38(9) of the Act, the Board:

1. Finds that the dogs were in distress on July 20, 2023;
2. Dismisses the appeal of the NOR dated July 27, 2023.

Peter Simmons, Member

Ziba Heydarian, Vice Chair

Footnotes

1. 1Quonset hut: a lightweight prefabricated structure of corrugated galvanized steel with a semi-cylindrical cross-section.
2. 2Pursuant to Sections 31(1)(a) and (c) of the Provincial Animal Welfare Services Act, 2019.
3. 3The appeal of the SOA is not before the Board at this hearing.
4. 4Rule 15.2
5. 5Rule 14.3
6. 6Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632 at para 52.
7. 7
8. 8ppm – parts per million
9. 9O.Reg. 444/19