Tribunals Ontario Animal Care Review Board
TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’étude des soins aux animaux
Appeal under subsection 38 of the Provincial Animal Welfare Services Act, 2019 R.S.O. 2019, c. 13
Between:
Parker Mogck and Chelsey Flanders Appellants
and
Chief Animal Welfare Inspector Respondent
DECISION AND ORDER
Order Made By: Ziba Heydarian, Vice-Chair
Appearances
For the Appellant: Parker Mogck, Self-represented
For the Respondent: Wynter Patchett, Inspector, Animal Welfare Services (AWS) Danielle Meuleman, Counsel
Heard by videoconference: March 25, 2024
OVERVIEW
[ 1 ] This is an appeal of a compliance order dated January 18, 2024 (Order).
[ 2 ] Animal Welfare Services (AWS) had previously attended the Appellants’, Parker Mogck (asked to be referred to as “Lexa”) and Chelsey Flanders, property in Windsor, Ontario (Property) on November 22, 2023, and observed various animals including one black German Shepherd type dog named Hera.
[ 3 ] Following this visit, Inspector Wynter Patchett issued an order for multiple animals at the Property. Regarding Hera, the order required a veterinarian examination with special attention to itching, possible parasites, and hair loss. This order is not the subject of the present appeal, rather the Appellants appealed the November order to the Animal Care Review Board (Board), File No 15428, and a decision confirming the order was released on March 7, 2024.
[ 4 ] On December 22, 2023, following the November order, the Appellants took Hera to Branton Animal Hospital due to concerns about anxiety and chewing her paws.
[ 5 ] The veterinarian who examined Hera prescribed medication, prednisone and cephalex, and recommended skin diagnostics consistent with skin scraping, fungal assay and biopsy, which the Appellants declined. The veterinarian also recommended a follow-up visit for Hera after two to three weeks.
[ 6 ] Due to uncertainty about Hera’s condition and whether the veterinarian’s recommendations had been satisfied, Inspector Patchett served another Order on the Appellants on January 18, 2024, requiring that they take Hera for a follow-up assessment by a licensed veterinarian. The Order was issued under section 30 of the Provincial Animal Welfare Services Act, 2019 R.S.O. 2019, c. 13 (Act). It also required the Appellants to provide AWS with the documentation outlining the findings and recommendations of the veterinarian by February 5, 2024.
[ 7 ] The Appellants appealed this Order to the Board on January 30, 2024.
[ 8 ] The Appellants emailed AWS on February 3, 2024, attaching a redacted copy of the veterinarian notes from the follow-up visit at Branton Animal Hospital on January 2, 2024. However, AWS could not determine from the email whether Hera had been seen by a licenced veterinarian as required by the Order, and they were not given permission from the Appellants to contact the animal hospital for further details.
ISSUES
[ 9 ] Should the Order dated January 18, 2024, made under s. 30 of the Act, be confirmed, revoked or modified, pursuant to s. 38(9)1 of the Act?
RESULT
[ 10 ] The Board confirms the Order dated January 18, 2024. The Board is satisfied that Inspector Patchett had reasonable grounds to believe that Hera was in distress on the date the Order was issued.
PRELIMINARY ISSUES
Late disclosure and late filing of evidence
[ 11 ] While the Appellants initially argued that they received late disclosure from the Respondent, the issue was resolved in that a) the Respondent confirmed they had served the Appellants by the deadline imposed by this Board, and b) the Appellants conceded that there was no prejudice from any potential delay.
[ 12 ] The Appellants also stated that they received a notice from AWS on March 20, 2024 (Notice), while they were not home, to do a compliance check on the Order under appeal. The Appellants requested to file this document as their only evidence in the case. The Respondent consented to the late filing, and the Board accepted it.
[ 13 ] Therefore, the Respondent’s book of documents and the Notice were both admitted into evidence on the consent of the parties.
EVIDENCE AND ANALYSIS
Should the Order dated January 18, 2024, made under [s. 30](https://www.canlii.org/en/on/laws/astat/so-2019-c-13/latest/so-2019-c-13.html) of the [Act](https://www.canlii.org/en/on/laws/astat/so-2019-c-13/latest/so-2019-c-13.html) be confirmed, revoked or modified, pursuant to [s. 38(9)](https://www.canlii.org/en/on/laws/astat/so-2019-c-13/latest/so-2019-c-13.html)1 of the Act?
[ 14 ] The Act provides an Inspector with the authority to issue an Order when an animal is believed to be in distress.
[ 15 ] Section 1 of the Act defines distress as the 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
[ 16 ] Proper care includes care in compliance with the minimum standards prescribed by the Act and its Regulation, O.Reg. 444/19 s. 3, including adequate and appropriate food and water, appropriate medical care, care for its general welfare, a proper resting and sleeping area, sanitary conditions, protection from the elements, and adequate space, light and ventilation.
[ 17 ] Section 30(1) of the Act states that an AWS inspector who has reasonable grounds to believe that an animal is in distress may order the owner or custodian to take certain actions that may be necessary to relieve the animal of its distress, including having the animal examined and treated by a veterinarian.
[ 18 ] Pursuant to section 38(1) of the Act, owners of animals can appeal an order from an animal welfare inspector to the Board, and following a hearing, the Board has the power to confirm, revoke or modify an order made under section 30.
[ 18 ] The Appellants argued that Hera was not in distress when the Order was issued. However, the Appellants failed to provide sufficient evidence in support of this and focused most of their arguments on how the subsequent vet visit on January 2, 2024 meant they were in compliance with the Order.
[ 19 ] Furthermore, the Appellants testified that the December 22, 2023, visit with the veterinarian was due to the Appellants’ own personal concerns about Hera, rather than due to concerns raised by AWS, and if Inspector Patchett had followed up with the Appellants there would have been no need for a further Order since they had already taken Hera for a follow-up assessment.
[ 20 ] Lastly, the Appellants testified that they sent AWS a copy of the redacted veterinarian records showing Hera was seen at Branton Animal Hospital on January 2, 2024, and that the redacted portions of the clinic notes were related to a payment plan.
[ 21 ] The Respondent argued that the Order was issued as there was nothing to indicate the Appellants had taken Hera for a follow up assessment, and the veterinarian records that were sent by the Appellants on February 3, 2024, appear to be notes made by a technician during intake rather than a further assessment by a licenced veterinarian. Furthermore, AWS could not determine Hera’s condition as the Appellants did not consent to any communication between the Respondent and Branton Animal Hospital.
[ 22 ] It is important to note that the issue before the Board is whether AWS had reasonable grounds to believe that the animal was in distress on the date the Order was issued, not whether the Order was complied with afterwards.
[ 23 ] Pursuant to section 1 of the Act, proper care includes appropriate medical care and AWS could not confirm, before the Order was issued, whether the Appellants had taken Hera for a follow-up assessment by a licenced veterinarian as recommended by the veterinarian at Branton Animal Hospital during the previous examination on December 22, 2023.
[ 24 ] Furthermore, according to the Appellants submissions they visited the veterinarian to address their own personal concerns about Hera, namely anxiety and paw chewing, which does not satisfy the veterinarian's recommendations from December 22, 2023, regarding Hera’s skin issues.
[ 25 ] In conclusion, based on the information available at the time of the Order, I find that it was reasonable for Inspector Patchett to believe that Hera was in distress and therefore the Order made on January 18, 2024, is confirmed.
ORDER
[ 26 ] The Panel confirms the Compliance Order made under s. 30 of the Act pursuant to s. 38(9)1 of the Act.
Released: April 23, 2024
_________________________
Ziba Heydarian, Vice-Chair