Appeal and Application under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Dominic Ivor Khan
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
ADJUDICATOR: Susan Clarke, Managing Vice Chair
APPEARANCES
For the Appellant: Domenic Ivor Khan
For the Respondent: Jason Kirsh, Counsel Eloise Jones, Animal Welfare Services
Heard by Videoconference: July 31, August 2, 8 and 9, 2024
OVERVIEW
1This hearing involves an appeal and an application brought by Domenic Ivor Khan (the “appellant”) who is the owner of 21 thoroughbred horses (“the horses”). He rents a horse farm in Campbellville, Ontario (“the property”).
2On May 28, 2024, Animal Welfare Services (“AWS”) entered the appellant’s property and, following an inspection, removed the horses based on a veterinarian’s advice that removal was necessary to relieve the horses’ distress.
3On June 12, 2024, the respondent, the Chief Animal Welfare Inspector (“the CAWI”), issued to the appellant a Notice of Decision to Keep Animal(s) in the CAWI’s Care (DTK).
4At the time of the hearing the horses remained in the care of the respondent.
ISSUES IN DISPUTE
5On consent of the parties, the issues to be decided are:
- Was it necessary for the respondent to keep the horses in care to relieve their distress?
- Were there reasonable grounds to believe that the horses that were kept in care may be placed in distress if returned to the appellant?
- Have the conditions that caused the horses to be kept in care ceased to exist such that the horses should be returned to the appellant?
- Should the horses that are being kept in care be returned to the appellant?
6Issues 1 and 2 relate to the appellant’s appeal of the DTK made by the respondent pursuant to s. 38(1) of the Provincial Animal Welfare Services Act, 2019 (S.O. 2019, ch. 13) (the “PAWS Act”). In this case, the initial evidentiary burden is on the respondent to show that it was necessary to keep the horses in its care to relieve their distress and that the respondent had reasonable grounds to believe that the horses may be placed in distress if returned to him. The onus then turns to the appellant to establish that it was not necessary for the respondent to keep the horses in care to relieve their distress, and that they would not be placed in distress if the horses were returned to him.
7Issues 3 and 4 relate to the appellant’s application to have his horses returned to him pursuant to s. 38(4) of the PAWS Act. In this case, the onus is on the appellant to show that the conditions that caused the horses to be kept in the respondent’s care have ceased to exist.
8The remedy in both the appeal and the application is the return of one or more of the horses.
RESULT
9The appellant’s request for the return of the horses is denied.
10In the matter of the appeal of the DTK, I find that it was necessary for the CAWI to keep the horses in its care to relieve their distress, and that the CAWI had reasonable grounds to believe that the horses might be placed in distress if returned to the appellant. For this reason, there is no basis to order the return of the horses with respect to the appeal of the DTK.
11In the matter of the application for the return of the horses, I find that the appellant did not meet his onus to prove that the conditions that caused the horses to be kept in the respondent’s care have ceased to exist. For this reason, there is no basis to order the return of the horses with respect to the application for their return.
ANALYSIS
(A) The Appeal of the Decision to Keep
Issue 1: Was it necessary to keep the horses in care to relieve their distress?
Issue 2: Were there reasonable grounds to believe that the horses that were kept in care may be placed in distress if returned to the appellant?
12For the reasons that follow, I find that:
- It was necessary to issue the DTK on June 12, 2024, to keep the horses in the CAWI’s care to relieve their distress; and
- The CAWI had reasonable grounds to believe that the horses might be placed in distress if returned to the appellant.
- The respondent has satisfied me that it had sufficient grounds to issue the DTK, and the horses should not be returned for this reason.
13On June 12, 2024, Regional Supervisor Tracy Lapping, Chief Animal Welfare Inspector Delegate (Delegate Lapping) issued a DTK on the appellant. The basis for her decision was expressed as, which is consistent with the wording in s. 31(6) of the PAWS Act:
- I have determined that keeping the listed animal(s) in the care of the CAWI is necessary to relieve the animal’s/animals’ distress; and
- I have reasonable grounds to believe that the above-mentioned animal(s) may be placed in distress if returned to you.
14Delegate Lapping provided the reasons for her decision in the DTK:
The horses who are subject to this notice require supervised medical care to return them to an appropriate physical state of health and vigor. They also require care necessary for their general welfare to address hoof condition. Further, the property, which houses the horses does not meet the standards of care with respect to shelter, food, water, pen condition and risk of injury. The duty of care has not been provided by the owner, to meet the minimum care requirements as outlined in the Equine Code of Practice1 or the basic standards of care outlined in Ontario Regulation 444-19.
15Delegate Lapping testified that in making her decision, she relied on a comprehensive package compiled by AWS Inspector Jennifer Lee, called a “Written Request to Keep an Animal in Care” (Request), as well as the PAWS Act, O. Reg. 444/19 Standards of Care, and the Equine Code of Practice.
16Delegate Lapping advised that the Request included nine Orders issued on the appellant on May 23, 2024, each one of which identified conditions causing distress to the horses, ordering that the conditions be rectified. The Request also included a copy of the Notice of Removal (the “NOR”) issued on May 28, 2024, and various veterinary records which she found compelling in reaching her decision to issue the DTK.
(a) The Orders and the Removal of the Horses
17Delegate Lapping testified that she relied on the nine Orders served on the appellant on May 23, 2024, in making the DTK. She indicated that she categorized the Orders as:
- The herd health, which relates to specific concerns identified with four named horses in Orders 12 through 4, and Order 5 to have the herd seen by a farrier; and
- The herd environment, which relates to general concerns identified for the herd in Orders 6 through 9, to address water, diet, shelter, and fencing and debris within the paddocks.
18The Orders related to herd health had compliance dates of May 28th for two of the horses, and May 30th, for the other two horses. The compliance date for the horses to be seen by a farrier was June 6, 2024.
19The Orders related to the herd environment ranged from May 23rd for providing water, to May 28th for providing food, and June 11th for shelter, fencing, and paddocks free from materials that could harm the horses.
20When the Orders were issued to the appellant by Inspector Lee, she also provided a copy of the Equine Code of Practice.
21The horses were removed from the appellant’s property on May 28th based on an investigation by AWS following complaints that several horses were on the road on May 27th. The investigation identified that several horses had escaped the property after breaching the fence at the northeast corner of the property.
22While the compliance date for the fencing was not yet due, AWS Inspector Lee issued the NOR pursuant to s. 31(1)(a) of the PAWS Act:
A veterinarian has advised the inspector in writing that removal is necessary to relieve the animal’s distress.
23The cause of distress identified on the NOR was that the fencing was in poor repair, multiple horses on the road on May 27th, 2024, “Peekaboo” humanely euthanized due to injuries sustained from fencing, injuries consistent with altercation with fencing.
24In Ivor v. CAWI (2024 ONACRB 94) regarding the appellant’s appeal of the NOR, the respondent testified that the horses were removed because it believed the horses could not be allowed to remain on the appellant’s property because they were at risk of escaping from the property again because the breached area of the fencing was the same type of materials throughout the property. The respondent concluded that the risk of other breaches was considered higher than initially thought when the Order for the fencing was issued.
(b) Veterinarian’s Reports
Veterinary Report from McKee-Pownall Veterinary
25The appellant engaged Dr. Yamil Cid of McKee-Pownall Veterinary Professional Corporation to examine the four horses identified in Orders 1 through 4. Dr. Cid did so on May 27, 2024. In his report dated May 27, 2024, Dr. Cid made specific findings for the four horses, including:
- Lack of dental care in the past 2-3 years;
- Lack of farrier care, and clear indication of moderate to severe “low heel-long toe” conformation;
- Low body condition score (BCS), and ribs and hip bones easily visible; and
- One of the horses had a severe laceration.
26For the four horses, Dr. Cid recommended oral exams and dental work within the next month, farrier care, and improved diets. For the horse with the lowest BCS, he recommended bi-weekly deworming. For the horse with the laceration, he recommended surgery. The appellant instead arranged for the horse to be euthanized.
27Dr. Cid also made general recommendations for the herd, regarding increasing the amount of hay for both mature horses and yearlings to meet their metabolic requirements.
Report of concerns from McKee-Pownall (unaddressed, undated)
28The respondent submitted a separate report authored by Dr. Cid in which he also identified concerns regarding shelter for the horses, inadequate grass and water for the horses, inadequate preventative medicine (dental work, farrier work, deworming, vaccinations), steel wire fencing which could be hazardous to the horses, and his concern that the owner didn’t appreciate the need for adequate nutrition for the horses.
Veterinary Records from intake examinations by Dunnville Veterinary
29Following the removal of the appellant’s horses from his property, AWS had the horses boarded at the Whispering Hearts Horse Rescue (“Whispering Hearts”). Whispering Hearts engaged Dr. Tom McQueen to do intake examinations.
30Dr. McQueen’s assessment of the herd on May 31, 2024, a few days after removal, indicated generally that the horse’s individual BCS ranged from 2 – 2.5 on a scale of 5 for 18 of the horses, with one horse at 2.75 and another at 3, and one at 0 out of 5. He stated that an ideal BCS ranged from 3 – 3.5 out of 5.
31Dr. McQueen identified other medical issues at intake that required attention, including the need for wound treatment for several horses, high parasite loading of the horses and one in particular, lameness in one horse, umbilical hernias requiring surgery, and pregnant mares. Many of these issues went beyond those issues identified in the various Orders.
(c) Analysis
32Delegate Lapping testified that in addition to the Orders, and the NOR, and the medical records, she also reviewed photographs of the property and the horses and videos taken during inspections; and reviewed Inspector Duty Notes. She concluded that the horses were in distress caused by a wide range of issues.
33Delegate Lapping testified that she determined that the inspections provided grounds for her to believe that the appellant was not in compliance with Ontario Regulation 444/19. She also concluded that the living conditions documented indicate they are below the standards of care in the Equine Code of Practice.
34Delegate Lapping testified that based on the inspections and the veterinarian reports, the horses were in distress, and it was necessary to keep them to relieve their distress caused by the medical concerns and the environmental deficiencies on the property. She also testified that she believed that to return the horses to the property would be to place them in distress, because she had reasonable cause to believe the environmental conditions had not been complied with.
35Delegate Lapping testified that she made her DTK because she believed it was necessary to relieve the horses’ distress, basing this part of her decision on the medical evidence of Dr. Cid and Dr. McQueen and Dr. McQueen’s recommendation that the horses be kept in care to receive supervised treatment, and necessities to relieve their distress. At the time, Dr. McQueen had recommended the horses remain in the CAWI’s care for 60 – 90 days.
36Delegate Lapping also made her DTK because she believed she had reasonable grounds that to return the horses to the appellant could place them in distress, basing this part of her decision on the evidence that the appellant had neglected routine care of the horses, neglected the horses’ medical needs, and had inadequate food, water, shelter and fencing. While the medical needs were being addressed by the CAWI, she had no evidence that the environmental conditions on the property had been remedied.
37I find the respondent’s evidence compelling, that the horses had not received routine care for some time, including proper nourishment, hoof care, dental care, vaccinations, wound care, or prenatal care.
38Delegate Lapping testified that for AWS to provide the care necessary to relieve the horses’ distress, a DTK had to be issued, and that the attending veterinarian has to determine the horses are no longer in distress, and further, that the Orders have been complied with, else the horses would be returned to distress.
39Dr. McQueen demonstrated to my satisfaction, that in the CAWI’s care the horses are receiving appropriate care for their medical issues, including dental work, farrier work, deworming and vaccinations, and that their BCS is improving. Dr. McQueen recommended that the horses need to be kept in care a further 30 to 60 days from his last inspection on August 1, 2024 to reach ideal BCS.
40The appellant made numerous submissions, including:
a. The property he leased is much larger than the paddocks and provides sufficient nutrition for the horses’ dietary needs; b. Racehorses perform better and live longer at a lower BCS score. He acknowledged the low BCS of his horses, and with the exception of one whom he accepted was ill, believed that they were at their ideal weight; c. His horses only lacked water once, briefly; d. He had recently constructed shelters for the horses; e. He had repaired the fence area that had been breached, and addressed the paddock environmental concerns; f. He had the horses seen by a veterinarian; g. He was making arrangements for a farrier to see to the horses; h. He was in the process of installing a “Paddock Paradise system” that would naturally address the horses’ hooves without the need for a farrier; and i. He saved money by deworming his horses without first testing them, and any parasites were from his previous property;
41The appellant further submitted that AWS had removed his horses before the Orders were due to be complied with, and that he had since then come into compliance. He further submitted that AWS had not responded to his requests to inspect his property for compliance, stating that the DTK should not have been issued without more current information about compliance.
42Delegate Lapping testified that she was aware the appellant had partially complied with the Orders: having a veterinarian examine the four horses, repairing the breached area of the fencing, and constructing shelters. I was not convinced that her examination of photos from the time the NOR was issued was sufficient evidence that the Orders had not been fully complied by the time she issued the DTK.
43Both parties said they had been unable to schedule an inspection date. For this reason, and pursuant to clause 9.3 (d) of the Rules regarding making available for inspection anything that can be presented as evidence at the hearing, I ordered the parties to coordinate a date for an inspection before August 8, 2024.
44I will discuss the appellant’s evidence in the following section on the Application for the Return of the Horses, however in summary, I was not persuaded by the appellant’s evidence that the horses were not in distress or that the horses would not be placed in distress if returned to him. The PAWS Act, O.Reg. 444/19, and the Equine Code of Practice all speak to varying degrees of specificity regarding what adequate food and water are, and to adequate shelter, appropriate fencing, and environmental concerns. I was not convinced by the appellant’s evidence that the horses would not be returned to distress if they were returned to him. Three examples illustrate my concerns: first, the appellant seemed unaware that the Equine Code of Practice made specific recommendations for fencing for horses, and recommended against wire fencing unless it was electrified because of the risk to horses’ safety. Second, the appellant admitted he had not seen the section in the Equine Code of Practice which provided area calculations for shelter. He was unable to provide any calculations to show that the shelters he had constructed met these recommendations. Third, the Equine Code of Practice clearly identified the amount of water horses required, and yet the appellant failed to provide any calculations to show he could provide this amount. In short, while the appellant maintained he was now in compliance with the Orders, he failed to provide any clear evidence that he is.
45While the appellant provided numerous articles to support his position that his horses were at an ideal BCS for racehorses, they were not authoritative studies, and he provided no industry experts as witnesses. In addition, while the appellant claimed a history of breeding racehorses, he did not present himself as an expert.
46I agree with the respondent, who in closing submissions, stated that much of the appellant’s evidence on the DTK appeal was contextual and reasons why the situation existed, but did not challenge the facts of the property or the horses.
47I find the respondent’s evidence compelling that it was necessary for Delegate Lapping to issue the DTK on June 12, 2024, to keep the horses in the CAWI’s care to relieve their distress, in particular for the numerous medical issues identified by the veterinarians. Examples of this include: the normal BCS score for horses is established in the Equine Code of Practice and was supported by veterinarian Dr. McQueen, and by Delegate Lapping, both of whom have considerable equine expertise. With treatment, the horses’ BCS has improved almost to within normal BCS range; the number of lacerations on various horses requiring medical attention; the extremely high parasite loading of the horses found when tested, and the need for treatment of same; the lack of farrier and dental care in the horses, and the need for treatment of same.
48I find that the CAWI had reasonable grounds to believe that the horses would be placed in distress if returned to the appellant. Delegate Lapping made the decision based on information gathered before the removal and the day after, and on photos from the appellant regarding improved fencing and provision of shelters. None of these led her to believe that the appellant had complied with the Orders, which would mean returning the horses to distress. Examples of this include the fencing and the lack of shelter. The fencing continues to be wire fencing intended to be electrified but isn’t. Without being electrified, horses running at the fencing can become seriously injured, which is the case with the horse that was euthanized. Another example is that the shelters which were erected were deemed insufficient in size for the number of horses by Delegate Lapping. While neither party provided measurements or calculations, I rely on Delegate Lapping’s visual assessment of the photographs and her considerable experience if being able to judge the adequacy. This is opposed to the appellant who admitted that he hadn’t read the requirement in the Equine Code of Practice.
49I find Delegate Lapping’s concerns regarding the appellant’s ability to maintain the horses and the property are well placed; the appellant admitted that he is running the farm alone and works other jobs to bring in income. While he had complied partially with the four Orders regarding having a veterinarian examine the four horses, and satisfied Inspector Lee that he had filled the water buckets, there is no evidence that he complied with any of the other Orders a week after they were issued. I find that the information provided to Delegate Lapping also indicates that the appellant neglected routine care of the horses, including a failure to have their dental and hoof care attended to, and a failure to test the horses for parasites and treat them adequately for the high burden that the respondent later found.
50As I am satisfied that the respondent had sufficient grounds to issue the DTK, there is no basis to order the return of the horses with respect to the appeal of the DTK.
(B) The Application for the Return of the Horses
Issue 3: Have the conditions that caused the horses to be kept in care ceased to exist such that the horses should be returned to the appellant?
Issue 4: Should the horses that are being kept in care be returned to the appellant?
51For the reasons that follow, I find that:
- The conditions that caused the horses to be kept in care have not ceased to exist such that the horses can be returned to the appellant; and
- The horses cannot be returned to the appellant.
52Section 38(4) of the PAWS Act states that:
An owner or custodian of an animal that has been kept in or taken into the CAWI’s care may apply to the Board by notice in writing to have the animal returned if the conditions that caused the animal to be kept in or taken into its care have ceased to exist.
53Delegate Lapping gave as the reasons for her decision in the DTK that the horses required supervised medical care to relieve them of their distress, and that she had reasonable grounds to believe that the property did not meet the standards of care with respect to shelter, food, water, pen condition and risk of injury, and that returning the horses to the appellant could return them to conditions of distress.
54My findings regarding the appellant’s application for the return of the horses are threefold: at the time of the hearing a veterinarian has not yet advised the CAWI that the horses are no longer in medical distress, nor that they have reached an ideal BCS; the appellant has not discharged his onus to prove that the environmental conditions have been remedied; and the appellant has no regular veterinarian to supervise the care of the appellant’s horses, nor farrier to maintain the horses’ hooves on a regular basis.
Orders 1 – 5, and later findings by veterinarian: Medical Issues of the Horses
55Dr. McQueen testified that he had last examined the horses on August 1, 2024, and their condition is no longer critical, but that they should remain in care for another 30 – 60 days from that date for continued supervised medical care. While Dr. McQueen was not specific as to which horses this applied to, and for what medical care, I believe this likely applies to any of the horses not yet at optimal BCS, any pregnant or lactating mares, and any horses with ongoing medical issues.
56The appellant described a theory regarding optimal feeding of the horses to keep them lean for high performance racing but has not engaged a nutritionist to examine his feed and determine an appropriate diet for the horses, nor to address their individual needs. I am not persuaded by the various published articles he produced; they are not authoritative, and the appellant did not call any expert witnesses to support his claims.
57The appellant described a system called Pasture Paradise, intended to exercise the horses and keep hooves trimmed naturally. However, he has not constructed the area yet and admits it will take time. He testified that he had constructed the system at his last 2 farms, however given that the horses were moved to the property only on May 14th and removed 2 weeks later, there is no evidence to support his claims that the system meets his claim.
58Based on the appellant’s own evidence, I find that at the time the horses were removed from the appellant’s property it had been at least 4 months since the horses were last seen by a farrier. This is supported by Dr. McQueen’s evidence regarding the conditions of the horses’ hooves. The parties both agreed that horses need to be seen by a farrier every 6 – 8 weeks.
59I give more weight to the evidence of the respondent, particularly to veterinarian Dr. McQueen, who is an expert in his field and who was able to provide substantive evidence of the medical issues he diagnosed at intake. The appellant’s veterinarian Dr. Cid also expressed concerns with the nutrition and weight of the horses, and the need for farrier care. The appellant admitted that he is not an expert in the field, and his personal history did not convince me that he is as knowledgeable as Dr. McQueen. He provided no expert witnesses to support the various articles he presented regarding maintaining horses at weights lower than recommended in the Equine Code of Practice. I am also not prepared to accept his plans for a future Pasture Paradise as an alternative to farrier care, first because it is not constructed yet, and secondly because the appellant provided no evidence that it has performed well in this regard for him to date.
60Furthermore, at the time of the hearing, the appellant provided no evidence that he has engaged a veterinarian or a farrier for the ongoing care of his horses when they are returned to him.
Orders 6 – 9: Environmental Issues of the Property
61The following paragraphs provide a summary of the evidence and my findings regarding Orders 6 through 9, which describe the environmental issues of the property.
Order 6 – Provide all horses access to water at all times
62The appellant submitted that the provision of water was never an issue and that he was always in compliance except for a 2-hr window on May 21, 2024, when the Inspectors inspected the property.
63The respondent submitted a report authored by the appellant’s veterinarian Dr. Cid, who wrote of his visit to the property on May 27, 2024 “Did not see good sources of water; buckets within the paddocks but possibly not sufficient for herd demands”. Neither party called Dr. Cid as a witness, so there was no opportunity to question him on what would be considered sufficient.
64The respondent called on AWS staff veterinarian Dr. Goldie as a rebuttal witness to the appellant’s submissions regarding compliance with the Orders. Dr. Goldie inspected the property on August 7, 2024 in response to my order and submitted a report in which he wrote that neither the southwest nor northwest fields contained a water source. He noted four half-barrels present in the west paddock, to serve as water vessels filled using a hose, three half barrels in the middle paddock, two half barrels in the east paddock, and two half barrels in the hill paddock.
65Section 3.1 of the Equine Code of Practice identifies in general, 5L of water is required for every 100 kg of horse body weight, and that this may vary depending on conditions.
66I find there is a lack of information to make a determination on whether this Order has been addressed. The appellant did not provide calculations to indicate the amount of water the Equine Code of Practice recommendation translates to for the horses within each paddock based on their weight, nor the capacity of the half barrels in each paddock.
67I note as well that the Order requires horses to have access to water at all times, and that the horses are provided water in barrels only. There is no indication from the appellant how he keeps the barrels filled, and I am concerned that this may not be possible when he is away working other jobs. The issue of lack of water was noted by AWS inspectors on a number of occasions, by Dr. Cid and by Dr. Goldie.
68The onus is on the appellant to prove compliance with the Order. He provided no calculations to show that he had considered the information in the Equine Code of Practice and that the amount of water he could provide would meet the recommendations. For this reason, I am not convinced that the appellant has met the onus that this condition has ceased to exist.
Order 7 – Provide all horses with an adequate supply of food (paraphrased)
69The appellant submitted that in the last half of the nineteenth century racehorses’ performance declined, opining that it was because the standards now require higher BCS ratings. He submitted articles to support his position that he was reducing the quantity he fed his horses, acknowledging the resulting lower BCS ratings, to improve their racing performance.
70The appellant showed photographs of various racehorses from 1891 through 1969 showing pronounced ribs on cross-examination to Delegate Lapping and to Dr. McQueen, asking them to confirm that they were healthy horses despite being so lean. Delegate Lapping and Dr. McQueen affirmed the horses were healthy but noted their well-developed musculature differed from that of the appellant’s horses.
71Delegate Lapping also testified that the appellant’s horses’ hair coats were dull rather than shiny, which was a sign of poor nourishment.
72Despite his position regarding the BCS scores, the appellant submitted that his horses had not received the alfalfa content from grazing in the fields at the previous farm, but that the current farm was capable of providing this. The appellant maintained that the issue wasn’t the quantity of food but about shifting what they were fed. He maintained that the property was large enough to provide adequate hay or grass/forage for the horses at all times.
73The respondent submitted an undated report from Dr. Cid in which he stated that “Access to grass is not enough to cover the metabolic requirements of all the horses” and that “the owner is not completely open to his recommendations to address the situation of the herd and has some misconceptions (i.e. he mentioned yesterday he has been following a study where it states horses can live longer when they receive 25% less of the regular amount of food)”.
74In his report to the appellant regarding his examination of the four named horses, Dr. Cid’s report stated:
- Please add an extra source of hay for all the horses. Horses need to eat around 2.5% of their body weight depending on the level of workout and/or current state of the patient (i.e., pregnancy, growth, etc.), and the nutritional values on each kind of forage we can offer.
- At least Dolly and the rest of the adults should have an extra source of hay of around 8-10 kg per day plus the grazing areas to cover their metabolic requirements.
75During cross-examination, the appellant took issue with Dr. Cid’s report, saying his discussion with him was that a higher percentage of alfalfa was required and to supplement the horses’ diet with grain (Purina Maternity).
76Dr. McQueen testified regarding his assessment of the horses’ BCS scores a few days after they were removed from the appellant’s property, indicating generally that their BCS were well below the ideal BCS which ranges from 3 to 3.5 out of 5.
77Dr. McQueen also testified that Whispering Hearts started a feeding program based on recommendations of a nutritionist, and that the horses received good quality hay. He added that it takes up to 4 weeks to get the horses’ guts adjusted to new feed and the program has to start slowly before adding grain. Dr. McQueen testified that on July 2, 2024, when they were in care for approximately 5 weeks, eleven of the horses had an improved BCS. Ten of the horses showed no improvement, including 2 pregnant mares and Mini (the horse with a pelvic fracture).
78Dr. McQueen gave a detailed description regarding “environmental contamination” and deworming protocols. The appellant didn’t disagree with this, stating that the horses would have been contaminated at the previous farm. He submitted that testing for parasites was more costly than simply treating all the animals once a year with a deworming regime.
79While it may be true that the horses’ low BCS scores were due to poor nutritional value at the appellant’s previous farm, and that they were removed from the property only two weeks after arriving at the property and the appellant had not yet had the advantage of better-quality grazing, the appellant was quite clear that he took no issue with a low BCS score. He made it clear that he intends to breed his horses this way, to improve the performance of unborn foals.
80I prefer the evidence of the veterinarians that the horses require supplementary feeding for the horses, in particular for pregnant and nursing mares, adults, and growing foals. The appellant did not call an expert, nor was he qualified as someone with specialized knowledge, training, or skill in this area.
81I find that the horses thrived while in the care of the respondent, with sixteen horses reaching the middle range of 2.5 – 3.0 out of 5; previously there with twelve horses in this range.
82At the time of the removal, and at the August 7, 2024, inspection, the appellant was unable to demonstrate compliance with this Order. He had not had the feed tested and had not engaged a nutritionist to provide him with a nutrition plan, despite the recommendations in the Equine Code of Practice for this.
83In its closing submissions, the respondent argued that while the appellant’s position is that the standard for racehorses is a leaner horse, that what is ideal for racing as a commercial venture doesn’t mean it is proper care with respect to the PAWS Act. It also submitted that the appellant based his theories on a number of published articles, none of them peer reviewed. The respondent also submitted that the appellant also didn’t call any authoritative witnesses to support his position, although initially he named a number as witnesses in the case conference.
84I find that the Order lacked specificity regarding what an adequate amount of feed is, and specific objectives expected such as a BCS within a certain range.
85Nevertheless, I find that the appellant rejected the opinions of Inspector Lee who wrote the Order, Dr. Cid, Dr. McQueen, and Delegate Lapping regarding a healthy BCS score. The appellant did not appear to have reviewed Chapter 3 of the Equine Code of Practice on feeding horses regarding quantity, nutritional content, or consulting a nutritionist.
86I also find that the appellant is required to comply with the Order; arguing the grounds for it when it is based in law, and without support from experts is not productive.
Order 8: Provide adequate and appropriate shelter for all horses
87The appellant submitted that he has now complied with this Order, and provided photographs to demonstrate that he has natural shade from trees in some areas, and he has constructed shelters from scrap lumber, and added “sail shades”.
88Dr. Goldie testified that the Equine Code of Practice recommends the area of shelter for horses kept in pasture or paddock for a 3-sided shelter. Section 2.1 states that 11.2 m² is required for the first 2 horses, and 5.6 m² for each additional horse.
89The appellant did not provide calculations showing the area of shelter within each paddock compared to the number of horses to show whether shelter provisions was adequate or not.
90The appellant has made some efforts to comply with this Order; this is confirmed by Dr. Goldie, that the west, middle and east paddocks had some constructed shelter and frames for outdoor stalls and/or shade sails However, I accept Dr. Goldie’s evidence, that the southwest and northwest fields had no shelters and that the shelters are poorly constructed and inadequately sized for the number of horses, and that there is no provision to segregate sick or injured horses for treatment.
91I find that the shelters are not completed or ready for the horses at this time, as shelters are not provided in every field where there are horses, they are inadequately sized for the number of horses, and they are poorly constructed.
Order 9: Repair Paddock Fencing, and ensure paddocks are safe (paraphrased)
92The appellant submitted that he repaired the northeast corner of the paddock adjacent the road the day following the removal of the horses, and that AWS Senior Investigator Austin had returned on May 29th to inspect it. He submitted that she asked that it be made higher, which he did. He submitted that she made no further comments regarding the remainder of the fencing.
93The appellant testified that the interior fencing is “temporary”, allowing him to move it to other areas when he wants to. He described it as a wire fence on a T post, but solid. He advised that the original barbed wire present during the May 21st inspection is 99% removed, and that he is happy to fix anything found on further inspection. This is consistent with his discussion with Dr. Goldie on August 7th, where he indicated that he wished the inspections had been more cooperative, with the respondent pointing out things for him to correct.
94The appellant submitted that he made all necessary repairs to the fencing throughout the property.
95Both Delegate Lapping and Dr. Goldie testified that the fencing wire used by the appellant was electric fencing and is designed to be electrified. Dr. Goldie further testified that the wiring must be installed in accordance with the manufacturer’s instructions, and that without being electrified, the polywire materials are a hazard to horses. Delegate Lapping noted that using electric fencing isn’t a requirement, and that a solid wood fence is also suitable.
96I prefer the evidence of the respondent, that the existing fencing is not suitable, and that without electricity it is hazardous to the horses because without being electrified horses will not be deterred from running directly into the wire fencing and could injure themselves. Delegate Lapping, and Dr. Goldie testified regarding this, and it is supported by the Equine Code of Practice.
97In conclusion, I find that the appellant has not discharged his onus that he has fully complied with the environmental Orders, and that the conditions that caused the horses to be kept in care have ceased to exist.
98I am also persuaded by Dr. McQueen’s medical recommendations that the horses should remain in care for a further 30-60 days from August 1, 2024, to reach their optimal BCS. While this period has now passed, I find that a veterinarian’s clearance is still required stating that the horses are no longer in distress.
99For these reasons, I make no finding for the return of the horses to the appellant.
Order
100The appellant’s request for the return of the horses is denied.
Released: October 1, 2024
______________________
Susan Clarke,
Managing Vice Chair