Parker Mogck and Chelsey Flanders v. Chief Animal Welfare Inspector, 2024 ONACRB 78

Tribunals Ontario Animal Care Review Board

TRIBUNAUX DÉCISIONNELS ONTARIO Commission d’étude des soins aux animaux

Date: 2024-03-07

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

Between:

Parker Mogck and Chelsey Flanders Appellants

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicators: Alisa Chaplick, Member Raymond Ramdayal, Member

Appearances:

For the Appellant: Parker Mogck and Chelsey Flanders Self-represented

For the Respondent: Ryan Sparks, Regional Supervisor, Animal Welfare Services (AWS) Wynter Patchett, Inspector, AWS Savannah Kort, Inspector, AWS Danielle Meuleman, Counsel

Heard by videoconference: January 15, 2024 (full-day) & January 22, 2024 (half-day)

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellants, Parker Mogck and Chelsey Flanders, who asked to be referred to as Lexa and Chelsey, are the owners of three dogs, Hera, Jyn, and Kylo (the “Dogs”) and one kitten, Tequila (the “Kitten”) as well as other animals who reside with them at their property in Windsor, Ontario (the “Property”).

2The appellants testified that they found a stray dog which they believed needed help and tried to surrender the dog to the Windsor-Essex County Humane Society. Subsequently, on November 22, 2023, Animal Welfare Services (“AWS”) visited the appellants at their Property.

3In particular, Inspector Wynter Patchett (“Inspector Patchett” or the “Inspector”) of AWS attended at the Property on November 22, 2023 with Inspector Savannah Kort (“Inspector Kort”). Inspector Patchett issued an Order to the Owner or Custodian of Animals dated November 22, 2023 (“Compliance Order”) respecting the Dogs and the Kitten, under section 30 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13. (“PAWS Act”). The Compliance Order stated that the Dogs and Kitten were said to require veterinary care as described more particularly below.

ISSUES

i. Should the Compliance Order dated November 22, 2023 made under s. 30 of the PAWS Act be confirmed, revoked or modified pursuant to s. 38(9)1. of the PAWS Act?

ii. Should the Panel order that the whole or any part of the cost to the owner or custodian of an animal of complying with an order made under s. 30 of the PAWS Act be paid by the Minister to the owner or custodian pursuant to s. 38(9)(4) of the PAWS Act?

RESULT

4The Panel confirms the Compliance Order dated November 22, 2023. The Panel is satisfied that Inspector Patchett had reasonable grounds to believe that the Dogs and Kitten listed in the Compliance Order were in distress and that Inspector Patchett was acting within her authority to issue a Compliance Order. The Panel does not order the Minister to reimburse the appellants for actions taken with respect to the Compliance Order.

LATE EVIDENCE

5There were several instances in which evidence was filed late with the Animal Care Review Board (the “Board”) in this matter. For instance, on January 12, 2024, counsel for the respondent made a request to submit a “revised package of documents,” which removed two photographs that were included in error. While the Panel received this revised package of documents within the disclosure deadline, the appellants advised that they received the revised package of documents shortly after the deadline. The revised package of documents was admitted into evidence on consent of the appellants.

6In addition, redacted doctors’ notes regarding Lexa and Chelsey, which dealt with the appellants’ need for service dogs, were both disclosed to the respondent and filed with the Panel on the first day of the hearing. The respondent consented to the late filing and, as such, the Panel agreed to accept the documents into evidence.

7Furthermore, veterinarian invoices were submitted by the appellants on the first day of the hearing, and filed with the Board, on the respondent’s consent (collectively the “Veterinarian Invoices”) as follows: (a) a veterinarian invoice for Ahsoka, Jyn and Kylo dated January 2, 2024; (b) a veterinarian invoice for Sky – which the appellants noted should be Tequila - dated December 7, 2023; and (c) a veterinarian invoice for Hera dated December 22, 2023. As noted above, the respondent consented to the late filing and the Panel agreed to accept the Veterinarian Invoices into evidence.

8The above evidence was accepted by the Panel because there was no objection to the late evidence and due to the possible probative value of the late evidence.

EVIDENCE AND ANALYSIS

i. Should the Compliance Order dated November 22, 2023 made under [s. 30](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html) of the [PAWS Act](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html) be confirmed, revoked or modified pursuant to s. 38(9)1. of the PAWS Act?

9The Inspector’s authority to issue the Compliance Order is central to this appeal. The PAWS Act provides an inspector with authority to issue a Compliance Order when an animal is believed to be in distress. “Distress” is defined in s. 1(1) of the PAWS Act as:

The state of being:

(a) in need of proper care, water, food, or shelter;

(b) injured, sick or in pain or suffering or;

(c) abused or subject to undue physical or psychological hardship, privation or neglect.

10Furthermore, s. 30(1) of the PAWS Act provides:

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, without limiting the generality of the foregoing, having the animal examined and treated by a veterinarian at the expense of the owner or custodian.

11In addition, s. 38(9)1. of the PAWS Act states:

(9) After a hearing, the Board may do one or more of the following:

1. Confirm, revoke or modify an order made under section 30.

12AWS stated that during their visit, which lasted for approximately 1.5 hours, they examined each animal in turn and took detailed photographs.

13The appellants argued that the Dogs and Kitten listed in the Compliance Order were not in distress at the time the Compliance Order was issued but, in the Panel’s view, the appellants did not provide any persuasive evidence in support of this position. The Panel finds that the Inspector had reasonable grounds to believe that the Dogs and Kitten listed in the Compliance Order were in distress based on the conditions of the animals as documented in the pictures of the animals taken by the Inspector and presented as evidence at the hearing. This included pictures of some of the animals who appeared to have a low body weight. The Panel accepts the respondent’s arguments that the Inspector did not raise serious concerns about the animals and had a measured response to her concerns when issuing a Compliance Order requiring veterinarian examinations for the animals at issue.

14In addition, the Panel accepts the respondent’s argument that distress is broadly defined in the PAWS Act, as noted in s. 1(1) above.

Did the Appellants have an obligation to raise the contents of the Compliance Order with the veterinarian & can the Panel consider the Veterinary Notes in this matter?

15Counsel for the respondent argued that the appellants had an obligation to raise the contents of the Compliance Order with the veterinarian when the animals were taken to the veterinarian as a result of the Compliance Order. The Panel agrees with this position since the wording of the Compliance Order states that the animals must be, “…examined by a veterinarian with special attention to…” Following this, the Inspector wrote, “See supplementary pages.” The supplementary pages noted the Inspector’s specific concerns.

16It is the Panel’s view that the words “with special attention to” compelled the appellants to bring the Inspector’s concerns to the veterinarian’s attention.

17Counsel for the respondent argued that when looking at the veterinary notes, it was not clear that all of the Inspector’s comments about the animals in the Compliance Order were brought to the veterinarian’s attention. Counsel for the respondent also stated that the appellants refused to allow AWS to speak with the veterinarian.

18Lexa, on the other hand, stated that the concerns in the Compliance Order were in fact brought to the veterinarian’s attention.

19The Panel notes that, with minimal exception, the veterinary notes do not explicitly address the concerns in the Compliance Order. The Panel makes no finding as to the credibility of Lexa’s evidence that the concerns in the Compliance Order were brought to the veterinarian’s attention. However, there is a lack of evidence to corroborate Lexa's testimony in this regard. Accordingly, we cannot find, on a balance of probabilities, that the appellants fully complied with the Compliance Order.

20The respondent argued that the Panel should only consider the evidence that was before AWS at the time that the Compliance Order was issued, or reasonably available to it at the time the Compliance Order was issued. Furthermore, the respondent argued that the Panel should not consider the veterinary notes in this matter because this hearing is not a de novo hearing in which the Panel can substitute its findings for that of the Inspector and the veterinary notes were not made until after the Compliance Order was issued. The Panel finds that it can look at the veterinarian notes as part of the hearing and doing so does not make this a de novo hearing.

21In addition, the Panel finds that the appellants had an obligation to raise the contents of the Compliance Order with the veterinarian. While the veterinarian notes generally stated that the animals were healthy (with some minor treatment recommendations etc.), the Panel finds a lack of evidence that the appellants brought the Inspector’s concerns to the veterinarian’s attention.

Did the Inspector misapprehend the animals’ breeds, or their roles as service Dogs, when making the Compliance Order therefore misapprehending whether the animals were in distress?

22The appellants argued that the Inspector misapprehended the animal breeds when issuing the Compliance Order, therefore, misapprehending whether the animals were in distress. For example, the appellants argued that the animals that the Inspector identified as having a “thin body condition” were an appropriate weight given their breeds, and not in distress. The respondent stated that it is not necessary for the Inspector to know every animal breed.

23In addition, the appellants argued that the Inspector failed to properly consider that some of the animals were service Dogs when issuing the Compliance Order. The respondent, on the other hand, stated that the fact that some of the animals were service Dogs did not impact the inspection and had no bearing on the issue of whether the animals were in distress.

24We agree with the respondent’s argument that AWS inspectors are not required to know every breed of animal when conducting inspections. We also find that the appellants lacked supporting information, such as documentary evidence, regarding their Dog breeds. Further, while the appellants seemed to be making the argument that different breeds of animals should have different compliance requirements, they lacked support for this argument. In addition, we agree with the respondent’s argument that whether or not the Dogs were service Dogs was not relevant to the issue of distress and the issuance of the Compliance Order.

Were the inspectors biased against the appellants and/or did they commit misconduct in this matter?

25The appellants argued that the inspectors exhibited racial bias and/or bias against a trans-woman and her Indigenous partner. We advised the appellants that the Panel does not have the jurisdiction to deal with issues of this nature in this matter. In particular, these issues are not part of the Panel’s prescribed powers pursuant to s. 38(9) of the PAWS Act. However, Part III of the PAWS Act addresses “Complaints” and the appellants can refer to this part of the PAWS Act and can pursue these complaints if they wish to do so.

26The appellants also stated that Chelsey had called AWS to report that one of the appellants’ dogs, Ahsoka, had been kicked in a store. Chelsey advised that she was told that Inspector Patchett would follow-up with her on this issue, but no such follow-up occurred. As noted above, if the appellants have a complaint about an inspector, they can avail themselves of Part III of the PAWS Act which addresses “Complaints”.

27To clarify, the appellants were advised that the Panel can only consider the arguments regarding bias if it is satisfied that any possible bias relates to the validity of the Compliance Order. We find that there was a lack of evidence of any possible bias and its impact on the validity of the Compliance Order.

28In addition, the appellants stated that they were seeking remuneration for the trauma caused by the AWS visit and the effects of having to retire Kylo from service work early due to the alleged negative impact that the AWS visit had on Kylo. Counsel for the respondent argued that the Panel does not have the power to order remuneration for these issues and that if the appellants are seeking a remedy for having to retire Kylo from service work early then the appropriate avenue would be Small Claims Court. The Panel agrees that it does not have the power to grant the requested remedy.

29The appellants are also seeking an Order that AWS inspectors receive more education which would entail some veterinary school or veterinary experience. The Panel does not have the power to order additional schooling or training for the AWS inspectors.

30In conclusion, the Panel finds that the Compliance Order made under s. 30 of the PAWS Act should be confirmed, pursuant to s. 38(9)1. of the PAWS Act, for the reasons noted above, as the appellants did not meet their onus of showing that the Compliance Order should be revoked or modified.

ii. Should the Panel order that the whole or any part of the cost to the owner or custodian of an animal of complying with an order made under [s. 30](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html) of the [PAWS Act](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html) be paid by the Minister to the owner or custodian pursuant to [s. 38(9)](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html)(4) of the PAWS Act?

31Section 38(9)(4) of the PAWS Act states the following:

(9) After a hearing, the Board may do one or more of the following:

4. Order that the whole or any part of the cost to the owner or custodian of an animal of complying with an order made under section 30 be paid by the Minister to the owner or custodian.

32With respect to the invoices from the veterinarian, the appellants argued that they should receive reimbursement from the Minister of $35 for the veterinary examination of each animal that was seen by a veterinarian. The Panel notes that one of the dogs that the appellants took to the veterinarian was not the subject of the Compliance Order. The appellants stated that they took that animal to the veterinarian due to fear of infestation because of the findings in the Compliance Order. While the appellants’ caution in taking the additional animal to the veterinarian is commendable, in the Panel's view, it does not constitute a basis for reimbursement.

33The appellants are also seeking reimbursement of $35 for the veterinarian examination of the Kitten who received a vaccine. The appellants’ position was that a veterinarian examination was necessary in order for the veterinarian to determine that the Kitten should be vaccinated. The Panel declines to order reimbursement of this $35, seeing no evidence on the invoice that a veterinarian examination was conducted, or the price of the possible examination. Even if there was an examination, we do not believe that the appellants should be reimbursed because we confirmed the Compliance Order for the reasons noted above.

34The appellants are also seeking reimbursement of $35 for the veterinarian examinations for the remainder of the animals listed on the Compliance Order. The Panel found that the Inspector had reasonable grounds to believe that the Dogs and the Kitten were in distress at the time that the Compliance Order was issued. The Compliance Order required the appellants to have the Dogs and Kitten examined by a veterinarian. The appellants did not make persuasive arguments that the $35 for the veterinarian examinations at issue should be refunded. Under the circumstances, we decline to order the Minister to refund the appellants for the cost of any veterinarian bills in relation to this matter.

ORDER

35The Panel confirms the Compliance Order made under s. 30 of the PAWS Act pursuant to s. 38(9)1. of the PAWS Act.

36The Panel declines to order that the cost to the appellants of complying with the Compliance Order be paid by the Minister to the appellants, pursuant to s. 38(9)(4) of the PAWS Act.