TRIBUNALS ONTARIO

Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO

Commission d’étude des soins aux animaux

Date: 12/08/2023 File Numbers: 15268, 15307 and 15308/ACRB

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

Between:

Shannon Spafford

and

Chief Animal Welfare Inspector

Appellant

Respondent

DECISION AND ORDER

Adjudicator: Susan Clarke, Vice-Chair

For the Appellant: Shannon Spafford, appellant Dara Saunders, Paralegal

For the Respondent: Joshua Matson, Senior Investigator and Acting Regional Supervisor, Animal Welfare Services (AWS) Lori Lamb, Inspector, AWS Kateryna Toderishena, Counsel

Heard by Videoconference: October 30, November 3, and November 9, 2023

Closing Submissions in writing: November 17, 2023

BACKGROUND

1Shannon Spafford, the appellant, is the owner of a dog that was removed from her residence at 567 Moneymore Road, Roslin, Ontario by Inspector Lori Lamb of Animal Welfare Services (AWS). The dog is a male beagle named Tayze, approximately 12-14 years old.

2Inspector Lamb attended the appellant’s property on August 19, 2023 after receiving a complaint that the appellant’s two dogs were tethered outside without food or water, and that Tayze was coughing. She issued an Order to the appellant pursuant to s. 30 of the Provincial Animal Welfare Services Act, 2019, S.O. 1990, c. 13 (PAWS Act) on August 20, 2023, ordering the following items:

1. Have Tayze seen by a veterinarian with special attention to his cough and overall health;
2. Follow all veterinarian treatment recommendations;
3. Provide adequate and appropriate shelter with minimum 9 ft. tether lengths, but not to tether the sick beagle; and
4. Provide water at all times.

3On September 6, 2023 the appellant took Tayze to Trenton Pet Hospital (Trenton) for a veterinarian examination related to his ongoing cough. Dr. Jinny Beens examined Tayze and recommended diagnostics to determine the cause of his cough, which the appellant declined. Dr. Beens then prescribed an anti-cough medication, and recommended Tayze be re-examined if the cough persisted.

4Inspector Lamb conducted a compliance inspection on September 8, 2023 and issued a Notice of Revocation and/or Replacement of an Order (the Replacement Order) to the Owner or Custodian of Animal(s) for items still outstanding on September 8, 2023, including the following items:

1. Have Tayze examined by a veterinarian with special attention to recommended re-check;
2. As per veterinarian recommendations, do not tether outdoors; and
3. Follow all additional vet recommendations. having Tayze re-examined by a veterinarian and following the veterinarian’s recommendations, and not keeping Tayze tethered outside.

5On September 26, 2023, Inspector Lamb conducted a further compliance inspection at the appellant’s property and found that the appellant had not complied with the September 8, 2023 Order. Inspector Lamb was also of the opinion that Tayze was in distress and, as a result, removed him from the appellant’s residence. She issued a Notice of Removal pursuant to s. 31(1)(c) of the PAWS Act. The appellant appealed the removal of Tayze to the Animal Care Review Board (the Board) on September 29, 2023 (Board File No 15268).

6On October 4, 2023, Inspector Lamb issued a Statement of Account (SOA) in the amount of $956.34 for the following items:

1. Boarding fees for September 26 – October 3 at $40 per day¹ $280.00
2. Veterinary exam, and diagnostic tests² $568.34
3. Diagnostics³ $108.00

7The appellant appealed the Statement of Account to the Board on October 16, 2023 (Board File No. 15308).

8On October 10, 2023, Inspector Lamb served a Notice of Decision to Keep Animal(s) in the Care of the Chief Animal Welfare Inspector, the respondent, pursuant to s. 31(6) of the PAWS Act (the Decision to Keep in Care). The appellant appealed the Decision to Keep in Care to the Board on October 16, 2023 (Board File No. 15307).

9Case conferences were held on October 5, 2023 regarding the appeal of the removal, and on October 18, 2023 regarding the appeals of the SOA and the Decision to Keep in Care. The parties consented to having the three appeals heard together,⁴ and the hearing proceeded before the Board on October 30, November 3, and November 9, 2023.

PROCEDURAL MATTERS

Adjournment and Narrowing the Issues in Dispute

10On October 27, 2023, the appellant requested an adjournment of the hearing because Tayze had been euthanized that day and the appellant needed time to mourn. The request was heard on October 30, 2023 and the adjournment request was granted on consent.

11The parties also agreed that the care provided to Tayze following the issuance of the Decision to Keep in Care, would not be a matter before me, and that any evidence regarding this would be struck. This included Dr. Robertson’s Will Say, which dealt with his examination of Tayze following the Decision to Keep in Care.

Dr. Bruce Robertson as a witness for the respondent

12On November 3, 2023 the respondent called veterinarian Dr. Bruce Robertson as a witness. The appellant objected because the parties had earlier agreed that his Will Say was no longer relevant.

13After some discussion, I ruled that Dr. Robertson could testify for the purpose of explaining the meaning of the medical records, as the terms and medications were outside the knowledge of a lay person. My ruling included that he could explain the diagnostic tests.

ISSUES IN DISPUTE

14The issues to be decided are:

Board File No. 15268 (Notice of Removal):

1. Was Tayze in distress at the time of his removal on September 26, 2023?
2. If so, was it necessary for AWS to remove Tayze to alleviate his distress?

Board File No. 15307 (Decision to Keep in Care):

3. Was it necessary to keep Tayze in the respondent’s care to alleviate his distress?
4. Did the respondent have reasonable grounds to believe that Tayze may be placed in distress if he was returned to the appellant at the time the Decision to Keep in Care was made?

Board File No. 15308 (Statement of Account):

5. Should the Statement of Account, dated October 4, 2023, be confirmed, revoked, or varied?

RESULT

15I find that:

1. Tayze was in distress at the time of his removal on September 26, 2023;
2. It was necessary for AWS to remove Tayze to alleviate his distress;
3. It was necessary for the respondent to keep Tayze in its care to alleviate his distress;
4. The respondent had reasonable grounds to believe that Tayze may be placed in distress if he was returned to the appellant at the time the Decision to Keep in Care was made; and
5. The Statement of Account dated October 4, 2023 is confirmed in the amount of $956.34.

ANALYSIS

The Removal

ISSUE 1: Was Tayze in distress at the time of his removal on September 26, 2023?

16For the reasons that follow, I find that Tayze was in distress at the time of his removal on September 26, 2023.

17Section 1 of the PAWS Act defines distress as the state of being:

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

18Section 3(2) of Ontario Regulation 444/19, “Standards of Care and Administrative Requirements” (Regulation) provides that every animal must be provided with adequate and appropriate medical attention. Section 3(6)(e) of the Regulation provides that every animal must be provided with protection from the elements, including harmful temperatures. Further, if the standards of care as set out in the Regulation are not met, this has been found to constitute “distress” for the purposes of the PAWS Act.⁵

The X-Rays and sedation

19Inspector Lamb testified that the first Order she issued to the appellant, on August 20, 2023 ordered the appellant to have Tayze seen by a veterinarian and to follow all treatment recommendations.

20Dr. Jinny Beens of Trenton testified that she had seen Tayze on September 6, 2023 regarding a cough Tayze had had for the past 12 to 18 months. She recommended diagnostic X-rays to rule out the possible causes of Tayze’s cough, including collapsing trachea, pneumonia, upper respiratory infection, asthma, heart failure or lung cancer. She testified that the appellant declined the X-rays on that date, and she prescribed an anti-cough syrup and recommended a follow-up appointment for diagnostics if the cough didn’t improve.

21Dr. Beens testified that she provided a Treatment Plan, which was a quote for an X-ray procedure. She recommended sedation for the procedure because Tayze was panting very heavily due to stress. She believed sedation was necessary for quality X-rays and that sedation was the safest option because the process of X-rays could stress Tayze too much, and that if he had heart disease this could cause him to go into acute heart failure.

22While the appellant testified that she didn’t recall discussing sedation with Dr. Beens, the Notice of Appeal filed for the removal of Tayze included a detailed quote for X-rays, including IV Sedation, and note 2 at the bottom described that the doctor or a staff member had described the procedures identified in the estimate, and “has explained to my satisfaction the purpose for performing them”. Dr. Beens testified that she did not recall discussing sedation with the appellant, but that it was her usual practice to do so.

23Dr. Beens testified that the appellant called her office on September 20, 2023 leaving a message saying that Tayze was still coughing, and looking for treatment options. Trenton staff and the appellant spoke on September 25, 2023; Trenton’s records indicate that the appellant said she didn’t want to put Tayze under sedation as she was concerned about his age, and that money was an issue. She asked if there were other options, but Trenton staff said Dr. Beens recommended X-rays, and sedation was required for the procedure.

24On September 25, 2023 when Inspector Lamb spoke with Trenton staff, she was told that the appellant had not booked a re-examination. Inspector Lamb contacted the appellant by text. The appellant responded, saying she had not taken Tayze to the veterinarian for X-rays because she was not willing to have him sedated because he was 14, and she couldn’t afford it because she was unemployed.

Keeping Tayze outdoors and tethered

25Inspector Lamb testified that the first Order she issued to the appellant, on August 20, 2023 ordered that the beagle was not to be tethered.

26In the appellant’s closing arguments, she submitted that in cross-examination Inspector Lamb confirmed that she did not have any medical recommendation to support her belief that Tayze should not be tethered, when she included the item in the August 20, 2023 order.

27The appellant took Tayze to Trenton on September 6, 2023. She testified that the veterinarian did not advise her that Tayze should not be kept outside, or that he should not be tethered.

28The appellant testified that she answered “no” to the question “does your pet roam freely outdoors?” in Trenton’s questionnaire because Tayze did not roam freely, because he was tethered.

29Dr. Beens testified that she did not caution the appellant about not tethering Tayze outside because her impression from the completed questionnaire was that Tayze was a house dog.

30Dr. Beens testified that on September 7, 2023 in a telephone conversation with Inspector Lamb (through her client services representative) that, when asked by Inspector Lamb if she had concerns with Tayze being tethered outside, she expressed that she did because of the extreme heat and humidity, as well as undue pressure on his trachea. Dr. Beens added that the temperature was above 25^oC, and no dog should be kept outside in that heat. Her concerns with the tethering had to do with the undiagnosed cause of Tayze’s coughing and that tethering could exacerbate it.

31On September 8, 2023 Inspector Lamb issued the Replacement Order, ordering that Tayze was to be rechecked by the Veterinarian, and “as per the Veterinarian recommendations do not tether outdoors”.

32The appellant testified that because the veterinarian never recommended that she not tether Tayze outdoors, she believed she didn’t have to comply with this.

Distress

33Inspector Lamb testified that when she returned to the appellant’s property on September 26, 2023, Tayze was in distress because the appellant had not complied with the Order issued on September 8, 2023. Inspector Lamb found Tayze tethered outside and coughing. Further Tayze had not been re-examined by a veterinarian, as ordered.

34The appellant denied that Tayze was in distress at the time of the removal, asserting that he was happy and always wagging his tail, and that his diet and defecation were normal. She testified that she had continued to keep Tayze on a tether because her invisible fence was not working, and she couldn’t keep Tayze inside because her children had asthma and because Tayze urinated on the furniture.

35The appellant testified that she was confused by the wording in the Replacement Order, and that she ran out of time to comply as her entire family had been ill, and she was dealing with medical appointments for Lyme disease which she had been diagnosed with.

36In her closing arguments, the appellant argued that Tayze was not in distress because he did not show any signs of distress, and that he was bright, alert, and responsive, and that he would regularly eat, drink, urinate, and defecate without any signs of struggle. She stated that if she had seen any red flags, she would have immediately brought Tayze to the vet for further examination. She referenced statements made by veterinarian expert Dr. Robertson, and by another veterinarian, that Tayze was bright, alert and responsive, with normal drinking, eating and other bodily functions.

37I recognize that to the appellant, Tayze appeared not to be in distress. However, under the PAWS Act, Tayze was in distress because his illness was not being treated. While Tayze’s illness had not yet been diagnosed at the time of his removal, the “rule outs” described by Dr. Beens could not be explored without diagnostic tests. When the appellant did not take Tayze back for a veterinarian re-examination, as ordered, she was not providing Tayze “adequate and appropriate medical attention” as required in the Regulation.

38It appears that the appellant may have been confused regarding her responsibility to comply with the Order, because she was not aware that Dr. Beens had recommended to Inspector Lamb that Tayze should not be tethered and outside. It also appears that there may have been confusion between the appellant and Dr. Beens regarding Tayze’s living environment because of the specific wording of Trenton’s questionnaire. However, it remains that the appellant was issued the Replacement Order that said Tayze was to be re-examined by a veterinarian, to follow the veterinarian’s recommendations, and not to tether Tayze outside. The appellant failed to comply with the Replacement Order.

39In closing arguments, the respondent referenced Pryde v CAWI (Pryde)⁶. In summary, the references illustrate the parallels between the two cases – the appellant failing to comply with an order, but continuing to argue the basis; the animals being in distress at the time of removal which included that it was in need of proper care, in compliance with the minimum standards prescribed by the PAWS Act and its Regulations; the removal of the animals to provide them with necessaries to relieve distress; the Decision to Keep in Care issued because returning the animals to the appellants would be to return them to a situation of distress unless the applicants complied with the Compliance decision; and a refusal to return the animals because the owner was still not in compliance with the order/s.

40The appellant responded to the respondent’s submissions regarding Pryde in her closing submission, asserting that there was no medical basis for ordering Tayze off tether in the August 20, 2023 order; and in the Replacement Order the item was based only on a quick third party conversation with the vet’s office and no inclusion of medical support for not tethering Tayze. She submitted that Tayze was removed because the appellant continued to tether him, without medical recommendations to support the order.

41The appellant did not appeal the August 20, 2023 order or the Replacement Order dated September 8, 2023. For that reason, I will not respond to her argument regarding the tethering issue, other than the history provided above which included that Dr. Beens did give a recommendation to Inspector Lamb that Tayze should not be tethered. Further, Dr. Beens testified that tethering could exacerbate his medical condition.

42In closing submissions, the appellant referenced Flaro v. CAWI (Flaro)⁷, noting that the adjudicator decided that there is a necessity of evidentiary basis for the respondent’s order; that there were contradictory opinions regarding the health of the dog and the medical treatment recommended, and that there was no finding of distress nor risk of distress if returned to the owner.

43The respondent replied to the appellant’s submissions regarding Flaro, submitting that the case is distinguishable because unlike in Flaro, in this case there is no factual dispute among the parties as to the state Tayze was in at the time of the removal (tethered, no veterinarian re-examination or any other care for his health issues).

44I agree with the respondent that the cases are dissimilar. Further, I am not bound to consider Board decisions, which are non-binding and distinguishable. However, while Inspector Lamb may have made the initial order not to tether Tayze because she believed he was sick (but without a medical diagnosis), in the Replacement Order she stated that it was based on recommendations made by the veterinarian.

45On the evidence before me, I find that Tayze was in distress at the time of his removal on September 26, 2023 as he:

1. Was sick and did not receive proper care as the appellant had not ensured that he received medical attention as required in s. 3(2) of the Regulation; and
2. Continued to be kept outdoors in harmful temperatures contrary to s. 3(6)(e) of the Regulation which requires animals be protected from harmful temperatures.⁸

ISSUE 2: Was it necessary for AWS to remove Tayze to alleviate its distress?

46I find that it was necessary for Inspector Lamb to remove Tayze to alleviate his distress, for the reasons that follow.

47Section 31(1)(c) of the PAWS Act states that an Inspector may remove an animal from the place where it is and take possession of the animal for the purpose of providing it with necessaries to relieve its distress if an order respecting the animal has been made under s. 30, and the order has not been complied with.

48The appellant did not appeal the Order, nor did she dispute that she did not comply with any of the items ordered. Her appeal was based entirely on her reasons for failing to comply.

49Inspector Lamb testified that:

a) On September 25, 2023, she received a text message from the appellant stating that she was not willing to have Tayze sedated to do X-rays, and that she couldn’t afford the X-rays because she was unemployed;

b) When she visited the appellant’s home on September 26, 2023, she found Tayze tethered to his shelter, and coughing as much or more than at previous visits;

c) She took Tayze to Richmond Veterinary Clinic (Richmond) for an examination and X- rays, and then to a secure boarding facility with a veterinarian on site; and

d) She was asked to authorize various tests based on suspicions that Tayze had cancer and a paralyzed trachea.

50Dr. Robertson testified as to his interpretation of the various medical reports up to the point that the Decision to Keep was made, that:

a) Richmond Notes identified severe chronic bronchitis, a moderate heart murmur, and a mild to moderate enlarged heart.

b) Kingston Humane Society (Kingston) Medical Chart noted paralysis of throat muscles, problems with Tayze’s liver and kidneys, a neoplastic condition (possible cancer), and severe dental disease.

51The parties disagreed about conversations between the appellant and Inspector Lamb, and between the appellant’s uncle, Joe Locklin, and Inspector Lamb, regarding:

a) The appellant’s ability to pay for Tayze to have diagnostics performed when it was clear that his cough had not been resolved by the anti-cough medicine, and

b) The appellant’s willingness to have Tayze sedated to enable x-rays to be performed.

52Despite the conversations, it is clear that Tayze was sick and required medical attention. Inspector Lamb gave the appellant almost a month to address the various items in the Orders. While the applicant complied with some of the items in the August 20, 2023 Order, she did not take Tayze back to the veterinarian for a re-assessment, not seeking medical attention for Tayze as ordered in the September 8, 2023 Order. The appellant responded to my question, testifying that she did not communicate with Inspector Lamb, seeking more time for compliance.

53The September 8, 2023 Order also required “As per Veterinarian Recommendations Do Not tether outdoors.” Despite this, when Inspector Lamb returned to the appellant’s property for a compliance check on September 26, 2023, Tayze was tethered outdoors.

54The appellant testified that:

a) Her invisible fence had not been repaired and, therefore, Tayze had to be kept on a tether;

b) The veterinarian had not recommended that Tayze shouldn’t be tethered outdoors; and

c) The Order timelines were too short to address due to her and her family’s health issues.

55If the appellant had issues with the orders, or the time provided to comply, she could have appealed the orders by following the instructions on the back of the order. She did not appeal these orders and, as a result, they stand.

56Therefore, I find that Inspector Lamb removed Tayze in accordance with s. 31(1)(c) of the PAWS Act as the appellant did not comply with the September 8, 2023 Order by September 19, 2023 and because Tayze was in distress on September 26, 2023 as discussed above in paragraphs [15] to [38].

57Further, s. 31(1) of the PAWS Act makes it clear that removal of an animal is to provide it with necessaries to relieve its distress⁹. The medical records of both Richmond and Kingston document that Tayze was sick and needed treatment to alleviate his distress. These records also document the medical care that was provided to him.

ISSUE 3: Was it necessary to keep Tayze in the respondent’s care to alleviate his distress?

58I find that it was necessary to keep Tayze in the respondent’s care to alleviate his distress for the reasons that follow.

59Section 31(6)(a) of the PAWS Act permits the respondent to keep an animal in its care that was removed under s. 31(1) if the respondent determines that it is necessary to relieve the animal’s distress.

60Tayze was removed from the appellant’s home on September 26, and taken to Richmond on the same date for diagnostic tests and was diagnosed with possible bronchitis or collapsing trachea. Tayze was prescribed antibiotics and anti-inflammatory medications.

61On September 26, 2023, Inspector Lamb then moved Tayze to Kingston where he continued to be treated by an on-site veterinarian and boarded.

62On October 10, 2023, the respondent issued the Decision to Keep in Care, following various diagnoses that Tayze was sick and required ongoing medication and treatment.

63Acting Regional Supervisor Joshua Matson (Matson) testified that:

a) Pursuant to s. 2(5) of the PAWS Act, he was delegated with the powers of the respondent to make a decision to keep an animal in care under the authority of s. 31(6);

b) He reviewed a Keep in Care Request Form (the Request Form) and the AWS e-Brief from Inspector Lamb outlining her concerns for returning Tayze to the appellant. His decision was based on his personal involvement with the case, a review of the Request Form, Inspector Lamb’s case summary, veterinary notes from Trenton, Richmond, and the notes from Kingston, Inspector Lamb’s Notes and the AWS Orders; and

c) He made the decision to keep Tayze in the respondent’s care pursuant to s. 31(6)(a) of the PAWS Act as it was necessary to relieve Tayze’s distress. Tayze was prescribed medications for extensive treatment plans and required ongoing care. After reviewing the materials, Acting Regional Supervisor Matson believed that the appellant was either unable or unwilling to provide medical care, or keep Tayze off a tether, so keeping him in care was necessary to alleviate his distress.

64The appellant submitted that:

a) Tayze wasn’t always kept outside, but would come inside if it was too hot or cold outside;

b) The veterinarian never said Tayze couldn’t be tethered outside;

c) She did not refuse the X-ray; she refused the sedation. The veterinarian should have advised her of the pros and cons of sedation when she expressed her concerns with the risk of sedation on her senior dog;

d) Joe Locklin’s comments¹⁰ to Inspector Lamb and to the veterinarian clinic were misconstrued and taken out of context. The respondent should not have made such a decision based on his misconstrued words;

e) She was not provided an opportunity to show any plan of action to have Tayze returned to her. If Tayze needed further examination, she would have taken him to the vet as required, and provided the necessary medicine and shelter as provided by the recommendation; and

f) Inspector Lamb did not accurately report their conversation regarding providing an end of life plan. She never said that she would not take the necessary steps for putting him to sleep if that was required for his wellbeing.

65I find that the CAWI had reasonable grounds to keep Tayze in its care, having determined that it was necessary to relieve Tayze’s distress. There is clear evidence from the Trenton, Richmond, and Kingston that Tayze was sick based on the initial history, and the need for diagnostic tests to diagnose the underlying cause of his chronic coughing. Regrettably, the diagnostics identified several medical issues that required ongoing treatment to relieve him of his distress.

66The most compelling of the appellant’s arguments are that she was willing to provide Tayze with the necessary care, whether it was veterinarian appointments, medication, or euthanasia if it was warranted. Despite this, I find that all of these are promises after the fact. She did not seek medical care for Tayze before he was removed, nor did she ever communicate to Inspector Lamb that she was now able to comply with the tethering issue (having repaired the invisible fence on October 11, 2023 which was the day after the Decision to Keep in Care was issued). When invited to provide Inspector Lamb with an end of life plan to have Tayze returned to her, she did not.

67Further, s. 38(3) of the PAWS Act provides that an owner may apply to the Board in writing for revocation of an order if an animal has ceased to be in distress. The appellant never made such an application, and never indicated to Inspector Lamb that she was now able to comply with the Order and wanted Tayze returned to her.

68The PAWS Act also provides, in section 38(4), for an owner to make an application for revocation of determination by applying to the Board in writing to have an animal that has been taken into the respondent’s care returned if the conditions that caused the animal to be kept in care have ceased to exist. In this hearing, the appellant advised that Tayze would no longer be required to be tethered outdoors, that she didn’t keep Tayze outside all the time (contrary to other earlier statements), and that she would be willing to provide for Tayze’s medical needs, including euthanasia if necessary. The appellant could also have provided this information to Inspector Lamb at any time, but did not.

69I find that at the time the respondent made the Decision to Keep in Care on October 10, 2023, some two weeks after Tayze was removed from the appellant, Tayze had been diagnosed with serious medical conditions and was receiving veterinary care arranged by the respondent. The respondent had no evidence before it that the appellant was able or willing to care for Tayze. While the appellant’s uncle had advised Inspector Lamb that he was willing to pay any of the expenses, he also was reported by Inspector Lamb as saying that the appellant did not properly care for the dog, kept him outside all the time, and that Tayze should not be returned.

70I find that Joe Locklin’s statements to Inspector Lamb suggest that the appellant would not be capable of relieving Tayze’s distress. In his testimony, Locklin stated that Inspector Lamb’s Will Say was not entirely correct. He testified that Tayze had been kept outside for the last year or so, and that if Shannon (the appellant) didn’t comply with the Orders, that it might be best to keep Tayze. He testified that he wouldn’t speak against his niece, and that he was willing to help out so Tayze could be returned to her. Locklin also testified that he never said some of the things that Inspector Lamb reported he said, although in cross-examination he admitted that he didn’t take notes of their conversation and didn’t recall what was said. He also testified that he did not recall the contents of his Will Say.

71In reviewing Locklin’s Will Say, it is apparent that he believes the appellant complied with the Order, even though she did not have Tayze re-examined as recommended by Dr. Beens if his cough didn’t improve, and as required in the September 8, 2023 Order. I am also persuaded that while he indicated the invisible fence had been repaired, meaning that Tayze would not need to be tethered anymore, he indicated there was still good reason to keep Tayze outside.

72In its closing submissions, the appellant stated that the Trenton medical records had detailed notes for September 25 and 26 that were missing from the copy she was provided. She stated these related to the telephone conversations with her uncle, and are the main reasons for the removal order and the subsequent orders for the CAWI’s Decision to Keep in Care. She further suggested that the decision was therefore biased and prejudiced against her as the CAWI stated that it was believed the owner was not willing to provide or pursue ongoing medical care and further diagnostics.

73In its reply submissions, the respondent stated that even if Mr. Lochlin’s statements were somehow misunderstood, those statements were a minor basis for the Decision to Keep in Care. The respondent stated that the decision was based primarily on the appellant’s repeated refusals to do further diagnostics on Tayze, and her statement to Lamb that she did not want Tayze to be “poked and prodded”; the absence of further care for Tayze’s health issues once the anti-cough medicine failed to work; and the fact that Tayze would be tethered if returned to the appellant.

74Regardless of the appellant’s promises that she would have gotten Tayze the care he needed, and Locklin’s promise to take care of the expenses, the information the respondent had on October 10, 2023 was that the appellant would not or could not comply with the Order. This was evident from her lack of compliance since August 20, 2023 when she continued to tether Tayze, and since September 8, 2023 when she continued to keep Tayze outside and failed to have him re-examined by a veterinarian.

75While the respondent may have made a different decision if it was aware the appellant intended to provide for Tayze’s care and intended to have him off-tether, this was not information before it at the time the Decision to Keep in Care was made. For these reasons, I find that it was necessary to keep Tayze in the respondent’s care to alleviate his distress.

ISSUE 4: Did the respondent have reasonable grounds to believe that Tayze may be placed in distress if he were returned to the appellant at the time the Decision to Keep in Care was made?

76I also find that the respondent had reasonable grounds to believe that Tayze may be placed in distress if he were returned to the appellant, at the time the Decision to Keep in Care was made.

77Section 31(6)(b)(i) of the PAWS Act permits the respondent to keep an animal that was removed under s. 31(1) in its care of the respondent has reasonable grounds to believe that the animal may be placed in distress if returned to its owner or custodian.

78In his Will Say, Matson testified that he made his decision to keep Tayze in the respondent’s care as he had formed reasonable grounds to believe that Tayze may be placed in distress if returned to the appellant. Matson testified that he formed the opinion that Tayze may be placed in distress if returned to the appellant because the appellant was either unable or unwilling to provide medical care or keep Tayze off a tether.

79I find that the respondent had reasonable grounds to believe that Tayze would be placed in distress if returned to the appellant when the Decision to Keep in Care was signed on October 10, 2023. At that time, the respondent had no evidence of the appellant’s ability or willingness to comply with the Order, and therefore it was reasonable to believe that to return Tayze to the appellant would be to return him to conditions that would cause him distress.

80My finding is also based on Inspector Lamb’s testimony, including the following:

a) She contacted the appellant at some point between September 27 and October 4, 2023 to provide an update on Tayze’s medical condition and to inform her that he would require medications for an extended period of time. The appellant responded that she couldn’t afford medical care, couldn’t afford to repair the invisible fence, and couldn’t afford the damage Tayze caused by urinating indoors;

b) When Inspector Lamb spoke with the appellant’s uncle on September 27, 2023, he told her that the appellant would not medicate and provide proper care for Tayze, so he should not be returned to the appellant;

c) Locklin also told Inspector Lamb that:

a) Tayze had been housed outdoors the entirety of the time the appellant owned him because after the first few days he attacked a cat; and

b) He would pay the SOA, but that Tayze should not be returned to the appellant;

d) On October 6, 2023, Inspector Lamb spoke with the appellant and advised her of Tayze’s various medical issues and that the respondent would be proceeding with the veterinarian’s recommended next steps. In response, the appellant expressed concern with proceeding with the recommended diagnostics due to Tayze’s advanced age, stating that he just needed to come home and die in peace; and

e) Inspector Lamb asked the appellant if she would like to explore end of life options or palliative care, to which the appellant responded that she didn’t want Tayze to be poked and prodded, and she just wanted him to die in peace at home. She advised the appellant that it wouldn’t be appropriate to have Tayze pass without appropriate veterinary care to ensure there was no distress.

Returning Tayze to the Appellant

81I note that at the time that the hearing was scheduled, and disclosure exchanged, one of the issues was if Tayze could be returned to the appellant. For that reason, in the appellant’s Will Say, she made promises to provide Tayze with all necessary medical care if he was returned to her and advised that her uncle was prepared to assist her with the necessary expenses. The fence was repaired on October 11, 2023 meaning that Tayze would not have to be tethered, and the appellant testified that she had made plans to keep Tayze indoors at night.

82However, this information was not before the respondent until provided as part of her disclosure on October 26, 2023. Further, the appellant never made an Application for Revocation of Determination, nor notified Inspector Lamb that she was now prepared to comply with the Order.

83For these reasons, I find that the respondent had reasonable grounds to believe that Tayze may be placed in distress if he were returned to the appellant at the time the Decision to Keep in Care was made.

ISSUE 5: Should the Statement of Account, dated October 4, 2023, be confirmed, revoked or varied?

84I confirm the October 4, 2023 Statement of Account in the amount of $956.34 for the reasons that follow.

85Under s. 35(1) of the PAWS Act, the respondent may, from time to time, serve a statement of account on an animal’s owner or custodian if an animal welfare inspector (AWI) has provided an animal with necessaries to relieve distress and/or if the respondent has taken an animal into the respondent’s care. The statement of account is in respect of the costs of the necessaries provided and the owner or custodian is presumptively liable for the amount specified in the statement of account pursuant to s. 35(3).

86An owner or custodian of an animal may appeal a statement of account to the Board pursuant to s. 38(2) of the PAWS Act. After a hearing, the Board may confirm, revoke, or vary a statement of account: s. 38(9)3., PAWS Act.

87The October 4, 2023 SOA covered expenses for Tayze’s exams and diagnostics, and for boarding from the date of his removal on September 26 until October 3, 2023.

88In her grounds of appeal, the appellant sought to have the SOA revoked or varied on the basis that Tayze should not have been removed and that the medical care had not been necessary. Further, the appellant did not dispute the SOA or the detailed supporting invoices, other than to submit that the boarding costs need not have been incurred because she could have cared for Tayze at home.

89As I found that Tayze was in distress on September 26, 2023 and that it was necessary for Tayze to be removed from the appellant’s home to provide him with necessities to relieve his distress from the date of his removal on September 26, 2023 until the SOA was issued on October 4, 2023, the appellant’s argument as to why the SOA should be revoked or varied fails.

90Dr. Robertson testified, explaining the detailed medical reports from Trenton, from Richmond, and from Kingston. Dr. Robertson testified that he researched the rates charged in the supporting invoices to the SOA, and that they were within the range of the fee guide published by the Ontario Veterinary Medical Association. This was not disputed by the appellant, nor did the appellant question Dr. Beens or Dr. DeMille about their clinic’s invoices.

91While the appellant submitted that she could have provided for Tayze’s medical care at home, and that there was no justification for boarding him, I do not agree. The appellant had a history of non-compliance with Orders, and there was no certainty that she would comply with any order for Tayze’s medical needs. This, together with a lack of evidence regarding compliance with the September 8, 2023 Order at the time the Decision to Keep in Care was issued, would mean placing Tayze back into distress.

92I confirm the SOA in the amount of $956.34 issued on October 4, 2023, on the basis that the expenses incurred were for necessaries to relieve Tayze’s distress, and that they were justified and reasonable. I also find that the appellant could not have cared for Tayze at home because she never provided Inspector Lamb with any evidence that she was prepared to comply with the Orders.

ORDER

93I find that:

1. Tayze was in distress at the time of his removal on September 26, 2023;
2. It was necessary for AWS to remove Tayze to alleviate his distress;
3. It was necessary for the respondent to keep Tayze in its care to alleviate his distress;
4. The respondent had reasonable grounds to believe that Tayze may be placed in distress if he was returned to the appellant at the time the Decision to Keep in Care was made; and
5. The Statement of Account dated October 4, 2023 is confirmed in the amount of $956.34.

Released: December 8, 2023

Susan Clarke, Vice Chair

Footnotes

1. 1Kingston Humane Society
2. 2Richmond Veterinary Clinic
3. 3Kingston Humane Society
4. 4Consistent with the Board’s powers under clause 9.1(1)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, Ch. S.22.
5. 5Pryde v CAWI, 2022 ONSC 6632, para 52.
6. 6Pryde v CAWI, 2022 ONSC 6632, paras 51, 52, 65, 68, and 84.
7. 7Flaro v. CAWI, 2023 ONACRB 14256, 14257 & 14258, paras. 27, 32b and 36 (Reconsideration decision)
8. 8While Tayze was still tethered, in violation of the second Order, this in itself is not distress.
9. 9Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632, para 65.
10. 10Joe Locklin is the appellant’s uncle. Both Inspector Lamb and Trenton staff reported that he made comments to them about the appellant’s inability to care for Tayze.