Gordon and Dawn Manning v. Chief Animal Welfare Inspector, 2023 ONACRB 67

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

Between:

Gordon and Dawn Manning

Appellants

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

For the Appellant: Jeffrey Smith, Paralegal

For the Respondent: Riel Hishon, Counsel

Heard by Videoconference: November 24, 2023

OVERVIEW

1Gordon, also known as Doug, and Dawn Manning (“appellants”) are the owners of 2 dogs, Tilly/Tillie and Olly/Ollie (the “dogs”) which live with them at their residence (“Property”). The dogs were removed by the respondent on October 19, 2023 pursuant to a Notice of Removal dated October 19, 2023 (“NOR”) made under s. 31 (1)(1a) and 31(1)(c) of the Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13 (“PAWS Act”). The dogs remain in the respondent’s care pursuant to a Notice of Decision to Keep an Animal in the Chief Animal Welfare Inspector’s Care dated October 23, 2023 (“DTK”) made under s. 31(6) of the PAWS Act.

2The appellants appealed the NOR in Board file number 15337/ACRB. The appellants appealed the DTK in Board file number 15364/ACRB. Prior to the hearing, the Board ordered that these two appeals be heard together.

3The appellants’ Notice of Appeal for the NOR states that the dogs were both actively under the care of Dr. Khanna as ordered and not in distress, no reasonable attempts were made to contact the appellants to notify them of removal or to remedy the dogs distress, and both dogs received Bravecto at their last appointment with Dr. Khanna and had several baths prior to the inspectors visit, and it was impossible for Tilly to have had flea dirt present.

4The appellants’ Notice of Appeal for the DTK states that the removal of animals “…did not follow protocol therefore the order to keep in care is moot, the appellants have been fully compliant with vet appointments and rechecks that they had proper notice of, according to the vet’s invoice, Ollie doesn’t require medication, only a vitamin supplement was ordered, no extensive testing was even performed on Ollie, and both dogs have been in the appellants family since they were pups and keeping them away from their family unit will cause them more distress”.

PRELIMINARY ISSUE - APPELLANT’S MOTION TO EXCLUDE RESPONDENT’S EVIDENCE

5The appellants’ legal representative gave notice to the Board on November 23, 2023 that he had been retained by the appellants for this hearing. At the beginning of the hearing, the appellants’ legal representative said he would like to bring a motion orally. Given the late retainer, I heard the appellants’ motion even though the appellants had not complied with Rule 15 of the 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, (“Rules”) which deals with motions and requires a written Notice of Motion with supporting evidence, served at least 10 days in advance.

6I orally denied the appellants’ motion with written reasons to follow. These are my reasons.

7The appellants’ oral motion was to exclude all of the respondent’s evidence on the grounds that the respondent had failed to comply with the November 17, 2023 deadline for disclosure and November 20, 2023 deadline for disclosure of the expert reports set out in the Board’s Case Conference Report and Order (“CCRO”) in Board file number 15337.

8The respondent pointed out that these deadlines had been extended until November 22, 2023 by the Board’s November 21, 2023 CCRO in Board file number 15364 and all deadlines had been complied with by the respondent who had served the appellants, not having been made aware of the retainer of their legal representative until the night before the hearing. The Board’s November 21, 2023 CCRO also ordered that these two Board files be heard together.

9Having heard the respondent’s submissions, the appellants reduced the scope of their motion and confirmed that they were only seeking to exclude the respondent’s experts reports on the basis that the appellants’ legal representative did not receive the experts’ material until after the close of business on November 22, 2023. When asked, the appellants’ legal representative could not explain why there was a delay in him receiving these reports from his clients.

10I denied the appellants’ motion and declined to exclude any of the respondent’s evidence for late production. The respondent’s expert reports were not late but rather were served on the appellants in accordance with the deadline in the November 21, 2023 CCRO, since it was not known at that time that the appellants had retained a legal representative.

ISSUES IN DISPUTE

11The issues in dispute are:

1. Was the removal of the dogs necessary to relieve their distress?
2. Should the dogs remain in the respondent’s care?

RESULT

12For the reasons that follow, I find that:

1. The dogs were in distress on October 19, 2023 warranting their removal.
2. It is necessary for the dogs to remain in the respondent’s care to alleviate their distress.

THE LEGISLATION

Distress

13Distress is defined in s. 1(1) of the PAWS Act as “a state of 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”.

14Section 3(2) of Ontario Regulation 444/19 (“Regulation”) under the PAWS Act requires that every animal must be provided with adequate and appropriate medical attention.

15Section 30(1) of the PAWS Act provides that an animal welfare inspector who has reasonable grounds to believe that an animal is in distress and who is able to promptly find the owner or custodian of the animal may order the owner or custodian to take such action as may, in the opinion of the inspector be necessary to relieve the animal of its distress, which may include, having the animal examined and treated by a veterinarian at the expense of the owner or custodian.

16Section 30(2) requires the order to be in writing and have printed on it information about the right of appeal and applications to the Board as well as the notice requirements of same. Section 30(3) requires that the order shall specify the time within which any action required by the order shall be performed. Section 30(4) provides that every person who is served with an order under this section shall comply with it in accordance with its terms until it is revoked by an animal welfare inspector or the Board, or as modified by the Board under s. 30(4.1).

Removal

17Section 31 (1)(a) provides that an animal welfare inspector may remove an animal from the place where it is and take possession of the animal if a veterinarian has advised in writing that relieving the animal’s distress necessitates its removal. Section 31(1)(c) provides that an animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of relieving its distress if, a Compliance Order respecting the animal has been made under s. 30 (“CO”) and the CO has not been complied with.

18Section 31(5) provides that an animal welfare inspector who has removed an animal under section 31(1) or 31(2) shall promptly serve written notice of his or her action on the owner or custodian of the animal, if known, and on the Chief Animal Welfare Inspector.

Necessaries Supplied by Respondent

19Section 33 provides that an animal welfare inspector who is lawfully in any place and finds an animal in distress may, in addition to any other action the inspector is authorized to take under this Act, take any reasonable steps to relieve the animal’s distress, which may include providing the animal with necessaries to relieve its distress.

Keeping an Animal in Care

20After removal under s. 31(1), s. 31(6)(a) of the PAWS Act permits the Chief Animal Welfare Inspector to keep an animal in its care if it determines that it is necessary to relieve the animal’s distress.

Owner’s Right to Appeal

21Section 38 provides that an owner or custodian of an animal may appeal, among other things, an order from an animal welfare inspector and a decision by an animal welfare inspector to remove an animal from a place, subject to time limits, all as set out in s. 38 (1), s. 38 (2), and s. 3 of Ontario Regulation 447/19. Owners or custodians may also seek other relief under s. 38 (3) and (4).

Powers of the Board After Hearing Appeal

22Section 38(9) of the Act gives this Board the authority, among other authorities, after a hearing, to:

a. Confirm, revoke or modify an order made under s. 30;

b. Order that an animal removed under s. 31(1) or (2), or that was taken into care by the Chief Animal Welfare Inspector under s. 31(6) or 44(8), be returned to the owner or custodian.

EVIDENCE AND ANALYSIS

The Removal of the Dogs Was Necessary to Relieve Their Distress

23I find that the removal of the dogs was necessary to relieve their distress under the PAWS Act for the following reasons.

24Prior to the removal of the dogs on October 19, 2023, the appellants had been made aware of the respondent’s concerns about the health of both dogs over a period of several months, yet failed to provide the appropriate veterinarian-recommended testing, treatment and continuing medication. The respondent’s Inspector Charlene Renaud testified that she had issued several CO’s to the appellants in respect of their dogs between July and October, 2023. All of the CO’s contained a written warning in capital letters that failure to comply may result in the animals being removed.

25The July 31, 2023 CO required the appellants by August 3, 2023 to have the dogs examined by a veterinarian with special attention to overall body condition and health assessment and special attention to skin condition, fleas, ticks, Tilly’s eye growth, to provide documentation from the veterinarian outlining the examination findings and the treatments recommended and undertaken, and to follow the treatment recommendations of the veterinarian.

26Inspector Renaud testified that because the appellant Dawn Manning told her that she did not understand the July 31, 2023 CO, on August 3, 2023, Inspector Renaud revoked the July 31, 2023 CO and replaced it with an order requiring the appellants by August 8, 2023 to take the same actions as the July 31, 2023 CO. An additional requirement was added that the dogs must not be moved from the appellant’s two addresses without prior notice and approval, except for veterinary care.

27Inspector Renaud was told by Ms. Manning that she had brought the dogs to her veterinarian Dr. Ibramhim for examination on August 9, 2023, he had recommended testing, but the appellants declined his recommendations for testing for financial reasons.

28On August 9, 2023 Inspector Renaud issued a CO requiring the appellants by August 25, 2023 to take substantially the same actions as the July 31, 2023 CO. Additional requirements were added that the dogs’ ears be examined and that the appellants complete all testing recommended by a veterinarian to diagnose the cause of the skin condition or any other ailments of both dogs and provide the dogs with the necessary treatments and/or medications to treat the skin condition and to follow all recommendations of the veterinarian relating to long term management of the distress. The appellants appealed this CO to the Board which resulted in the appeal being resolved by the respondent revoking this CO and providing a new order to the appellants.

29Both Inspector Renaud and Ms. Manning testified prior to issuance, a draft version of the September 12, 2023 CO was emailed to Ms. Manning for review, discussed in a conference call with Inspector Renaud, and some wording was changed at the request of Ms. Manning. Specifically, Ms. Manning asked for an end date for paragraphs number 4 and 5 because she was concerned that there be an end date to the appellants’ requirements. On September 12, 2023, Inspector Renaud revoked the most recent CO (August 25?) and replaced it with the September 12, 2023 CO.

30The September 12, 2023 CO required the appellants to comply with five requirements:

(1) Have the dogs re-assessed by their veterinarian as to their skin condition, Tilly’s ear infection and any other ailment identified by Dr. Khanna on September 1, 2023 by September 14, 2023;

(2) Obtain refills on all medications and/or treatment prescribed and recommended by Dr. Khanna on September 1, 2023 by September 15, 2023;

(3) Provide Inspector Renaud with documentation from the veterinarian’s re-assessment set out in item 1;

(4) “Commencing immediately” and ending December 31, 2023, to follow all veterinarian’s recommendations from Dr. Khanna’s clinic regarding treatment and/or diagnostics, to address either, or both dogs’ health ailments, including the use of prescribed medications and/or treatments until a veterinarian from Dr. Khanna’s clinic approves discontinuation of any medication and/or treatment plan in writing;

(5) Notify Inspector Renaud of any change of veterinarian “commencing immediately” and ending December 31, 2023.

31Inspector Renaud testified that she was concerned about the health of the dogs when she first inspected them at the end of July, 2023 and she found them to be in distress and in need of medical care. The photographs taken by Inspector Renaud at that time showed that Ollie had missing fur, some kind of skin condition, a growth on the buttocks, and had fleas. Tilly had a growth on one eye, missing fur, fleas, red skin on her neck.

32The appellants did several weeks later take the dogs to their veterinarian Dr. Khanna. However, both Inspector Renaud and Dr. Khanna testified that after the first two-week course of prescribed medicine ran out, the prescription was never refilled and the appellants never took the dogs back to Dr. Khanna for re-assessment. The appellants had also refused the veterinarian-recommended testing for the dogs on financial grounds. The records of Dr. Khanna’s clinic confirm that both dogs have a chronic skin problem. Testing such as skin scraping, and blood tests were recommended but declined by the appellants as noted in the records. At the August 5, 2023 appointment, the appellants only purchased Apoquell which helps with itching. At the September 1, 2023 appointment Dr. Khanna and his records indicated that he was treating the dogs symptomatically because he could not accurately diagnose without testing. The appellants purchased a two-week supply of the prescribed medication and were advised to return in two weeks. The appellants did not take the dogs back to their veterinarian or purchase a renewal of the prescribed medication. Ms. Manning said this was because of financial issues.

33Inspector Renaud testified that on October 19, 2023, the date of removal, the skin on Ollie’s back end was still rough, fur was missing especially on the buttocks and the skin was in need of treatment. There were patches of irritated skin on Tilly’s body, skin was pink and inflamed under the chin, oily residue on her tail, black dots on her skin believed to be flea dirt and her ear was dirty with a dark substance. Although Inspector Renaud admitted that there had been some improvement in the skin condition of the dogs, she found them to be in distress and needing medical attention. Inspector Renaud’s testimony is consistent with the Notice of Removal of Animal(s) she issued under s. 31(1)(a) on the advice of Dr. Robinson, the respondent’s veterinarian, in writing that relieving the animals distress necessitates their removal, and under s. 31(1)(c), that the September 12, 2023 CO had not been complied with.

34Dr. Robinson certified that he advised the respondent that alleviating the distress of the dogs necessitates their removal pursuant to s. 31(1)(a) of the PAWS Act. Even though Dr. Robinson did not testify at the hearing and his Certificate is hearsay, I am satisfied from the testimony of Inspector Renaud that he was advised by Inspector Renaud about the prescriptions for the dogs running out and other relevant information. The fact that Dr. Robinson made the Certificate without seeing the dogs in person tends to indicate that he did not feel it was necessary to do so. The Board can accept hearsay evidence under s. 15 (1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S22 (“SPPA”) and I accept Dr. Robinson’s Certificate which is consistent with the testimony of Inspector Renaud, Dr. Khanna, the veterinary records, and photographs of the dogs filed by the respondent. I also find that Dr. Robinson’s Certificate is supported by the testimony of Dr. Khanna who, when shown photographs of the dogs taken October 19, 2023, testified in cross-examination that the dogs’ skin did not look healthy to him.

35Also, the September 12, 2023 CO had not been complied with. The appellants did not follow the recommendations of Dr. Khanna for testing and re-assessment of the dogs made at the last appointment on September 14, 2023. Dr. Khanna testified that the appellants never returned with the dogs to his clinic after September 14, 2023 as he recommended.

36Based on Dr. Robertson’s Certificate of a Veterinarian Advising the Removal or Euthanasis of Animal(s) dated October 19, 2023 (“Certificate”), and the non-compliance with the September 12, 2023 CO described by both Inspector Renaud and Dr. Khanna, I find that the removal of the dogs on October 19, 2023 was required under s. 31 of the PAWS Act for the purpose of providing medical care and treatment to the dogs to relieve them of their distress.

37Although the Notice of Appeal of the NOR states that the dogs were both actively under the care of Dr. Khanna as ordered and not in distress, these assertions are not supported by the evidence which clearly establishes that the appellants never returned to see Dr. Khanna after the September 14, 2023 appointment despite being advised to do so as Dr. Khanna testified. It was not up to Dr. Khanna’s office to notify them to return as the appellants suggest. Further, the September 12, 2023 CO required them to follow the recommendations of Dr. Khanna.

38Although the Notice of Appeal of the NOR states no reasonable attempts were made to contact the appellants to notify them of removal or to remedy the dogs distress, the evidence establishes otherwise. Since the end of July, 2023, the appellants had known of the respondent’s view that the dogs were in distress and several CO’s had been made, replaced and one appealed. Although the appellants suggest that the September 12, 2023 CO was unclear, I find that it clearly set out in plain language the requirements designed to alleviate the dogs’ distress, yet the appellants failed to comply. Further, the respondent had consulted with Ms. Manning on it prior to issuance.

39Although the Notice of Appeal of the NOR states both dogs received Bravecto at their last appointment with Dr. Khanna and had several baths, and it was impossible for Tilly to have had flea dirt present, the fact is that the appellants failed to provide the medical care to the dogs that they needed as set out in the September 12, 2023 CO.

40Although Ms. Manning testified that Dr. Khanna never told them to take the dogs back for another consultation two weeks after the mid-September, 2023 consultation, I prefer the testimony of Dr. Khanna on this point. Ms. Manning’s testimony on this is not corroborated by any other person or by the veterinary records and it conflicts with the testimony of Dr. Khanna. Dr. Khanna was cross-examined and his testimony was not shaken. Further Dr. Khanna’s testimony is supported by his records and his recollection.

41Having considered the totality of the evidence before me and all submissions made by both parties, I find that the removal of the dogs was necessary on October 19, 2023 to alleviate their distress.

It is Necessary for the Dogs to Remain in Respondent’s Care to Alleviate Their Distress

42Having considered the totality of the evidence before me and all submissions made by both parties, I find that the dogs cannot be returned at present as the appellants are not able to sufficiently care for the dogs such that the dogs could be returned without being placed immediately back in distress. The following are my reasons.

43Ryan Sparks, Regional Supervisor for the respondent testified that he approved the issuance of the DTK because the dogs required a level of care that the appellants could not provide, they declined the diagnostic tests and did not follow the recommendations of their veterinarian. Given this, he is of the view that the dogs would be in distress if returned to the appellants. Inspector Renaud testified to the same effect. The appellants did not cross-examine Mr. Sparks. Inspector Renaud’s testimony was not shaken on cross-examination.

44It is clear from the evidence that the dogs will require continuing veterinarian care for their previous medical conditions and ongoing health. Inspector Renaud, Dr. Khanna, and Regional Supervisor Sparks all testified to that effect. The post-removal records of the respondent’s veterinarian show that testing has been done on the dogs which resulted in Dr. Durbin opining that one of the skin conditions is chronic dermatitis. The dogs have been put on a special diet and receive regular veterinary assessment and necessary treatment.

45Although the appellants’ Notice of Appeal for the DTK states that the removal of animals did not follow “protocol” and therefore the order to keep in care is moot, I find no evidence to support this. The DTK dated October 23, 2023 is made under s. 31(6) for the reasons given by Regional Supervisor Sparks and stated in the DTK and I find no defect in it.

46Although the appellants’ Notice of Appeal for the DTK states that the appellants have been fully compliant with vet appointments and rechecks that they had proper notice of, this is not supported by the weight of the evidence, and I have found that the appellants did not return to Dr. Khanna for follow- up as he recommended at the September 14, 2023 appointment.

47Although the appellants’ Notice of Appeal for the DTK states that Ollie doesn’t require medication, only a vitamin supplement was ordered, no extensive testing was performed on Ollie, and both dogs have been in the appellants family since they were pups and keeping them away from their family unit will cause them more distress, again I find no evidence to support any of these assertions. It is clear from the veterinary records filed and the testimony of Dr. Khanna that ongoing veterinarian care was needed by both dogs and the appellants refused to provide it, despite many opportunities over several months in 2023.

48It is clear from the admission of Ms. Manning that the appellants are unable or unwilling to commit the financial resources necessary to provide regular and continuing veterinary care for the dogs. The appellants declined testing that Dr. Khanna recommended and failed to take the dogs for re-assessment when the initial two-week prescribed medicine ran out. Ms. Manning testified that the dogs had these skin conditions “for years” which indicates an unwillingness to seek veterinary care for the dogs for some significant period of their lives.

49It was not until after the dogs were removed and they received an assessment from respondent’s veterinarian, Dr. Durbin, that there was finally a treatment plan following Dr. Durbin’s assessment that the cytology of skin and ears showed secondary infections with yeast and bacteria. This was not done previously as Ms. Manning had told her veterinarian that they could not afford the recommended testing.

50To return the dogs to the appellants is more likely than not to place them back into a situation where their veterinary care is likely to be neglected and they will be placed immediately back in distress. As a result, I am not prepared to return the dogs to the appellants.

CONCLUSION

51I find that the dogs were in distress on October 19, 2023 warranting their removal. I also find that it is necessary for the dogs to remain in the respondent’s care to alleviate their distress.

ORDER

52For the reasons set out above and pursuant to the powers of the Board under s. 38(9) of the PAWS Act, I confirm the NOR and the DTK and deny these appeals.