Bradley v. Chief Animal Welfare Inspector, 2024 ONACRB 79

Animal Care Review Board

Date: 03/21/2024

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

Between:

Kimberly Bradley Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Susan Clarke, Vice-Chair

For the Appellant: Gemma Dingwall, Counsel Kimberly Bradley, Appellant

For the Respondent: Jason Kirsh, Counsel Erin Brûlé, Inspector, and Josh Matson, Regional Supervisor Animal Welfare Services

Heard by Videoconference: February 6, 7 and 13, 2024

OVERVIEW

1Kimberly Bradley, the appellant, owns and runs a hobby farm in Iroquois Falls, Ontario (the “Property”). Thirty-one of her animals were removed by Animal Welfare Services (AWS) on December 14, 2023 and placed in a boarding facility.

2On October 11, 2023, AWS Inspector Brûlé issued two orders pursuant to s. 30(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the PAWS Act) to the appellant.

3On November 30, 2023, Inspector Brûlé issued three additional orders under s. 30(1) of the PAWS Act to the appellant.

4On December 14, 2023, Animal Welfare Services (AWS) removed the appellant’s horse (Oliver), 13 pigs, and 17 poultry and waterfowl (collectively, “the Animals”) from the Property pursuant to s. 31(1)((c) of the PAWS Act for failure to comply with the five orders described in paragraphs [2] and [3]. Inspector Brûlé also issued a Notice of Removal on the appellant on the same date.

5On December 27, 2023, Inspector Brûlé served a Decision to Keep the Animals in the Chief Animal Welfare Inspector’s Care (Keep in Care Decision) pursuant to s. 31(6) of the PAWS Act. The Keep in Care Decision was signed by Regional Supervisor Joshua Matson, as a delegate of the Chief Animal Welfare Inspector, the respondent.

6On January 2, 2024, Inspector Brûlé served a Statement of Account (SOA) pursuant to s. 35(1) of the PAWS Act on the appellant for veterinarian and boarding costs incurred for the Animals while in the CAWI’s care. The total amount of the SOA was $8,872.45.

7The appellant appealed the Keep in Care decision on January 7, 2024, and the SOA on January 8, 2024 to the Animal Care Review Board (the Board). On January 9, 2024, the appellant filed an Application for Revocation of Determination (the “Application”) pursuant to s. 38 of the PAWS Act, for the return of the Animals. She has not appealed any of the orders, nor the decision to remove her Animals.

8The hearing proceeded before the Board as a hybrid hearing, with affidavits submitted as evidence-in-chief, and cross-examinations held on February 6, 7, and 13, 2024 on the two appeals and the Application. Written closing submissions were submitted to the Board by February 16, 2024.

PRELIMINARY MATTERS

Appellant’s Motion to Strike Evidence

9On February 7, 2024, the appellant requested that certain pages in the exhibits attached to the affidavits of Dr. Amy Gaw and Dr. Nicola Jackson be struck from the hearing evidence because the exhibits related to:

i. Information dated prior to the orders that were the basis for the Animals’ removal; and

ii. Animals other than those removed.

10The respondent submitted that it was unaware of the appellant’s position on this material until it was raised at the hearing even though the appellant had the materials the previous week. It further submitted that this request could be addressed in closing submissions.

11On February 13, 2024, the appellant also moved to strike certain pages in the affidavits and exhibits of AWS’s two staff witnesses, Inspector Brûlé and Regional Supervisor Matson, for the same reasons provided above. The respondent submitted the same concerns as above.

12After hearing submissions from the parties:

i. I ordered that any documents in the veterinarian’s exhibits that were not specific to the five orders issued in October and November, and on which the removal of the Animals was based, be struck from the hearing evidence as they are not relevant to the issues in dispute; and

ii. I denied the appellant’s request to exclude certain pages and exhibits contained in AWS’s two staff witnesses’ affidavits because the appellant’s request was not made in a timely manner. The appellant had raised other issues regarding the affidavit evidence on February 7, 2024 and failed to provide a sufficient explanation as to why her concerns regarding these affidavits were not raised at that time.

ISSUES IN DISPUTE

13The issues to be decided are:

1. Appeal 15532/ACRB: The Decision to Keep in Care

i. Was it necessary for the respondent to keep the Animals in its care to relieve the Animals of distress when the Keep in Care decision was made?

ii. Did the respondent have reasonable grounds to believe that the Animals would be placed in distress if they were returned to the appellant when the Keep in Care decision was made?

iii. Should the Animals be returned to the appellant?

2. Application 15540/ACRB: The Application for Return of the Animals

i. Have the conditions that caused the Animals to be kept in the respondent’s care ceased to exist?

ii. Should the Animals be returned to the appellant?

3. Appeal 15534/ACRB: The Statement of Account

i. Should the January 2, 2024 SOA in the amount of $8,872.45 be confirmed, revoked, or varied?

RESULT

14I find that:

1. The respondent failed to prove on a balance of probabilities that when the Keep in Care Decision was made:

i. It was necessary to keep the Animals, except for the horse, in its care to relieve the Animals of distress; and

ii. The CAWI had reasonable grounds to believe that the Animals, except the horse, might be placed in distress if returned to the owner.

2. As a result of the appeal of the Keep in Care decision:

The following animals shall be returned to the appellant:

i. The pigs and piglets; and

ii. The poultry (chickens) and waterfowl (ducks).

The horse shall not be returned to the appellant.

3. Given my finding on the appeal of the Keep in Care Decision, I find it unnecessary to determine the Application for the return of the Animals. Had it been necessary for me to determine the Application however, I would have allowed for the return of the Animals, except the horse for the same reasons set out below relating to the Keep in Care Decision;

4. The applicant has failed to prove on a balance of probabilities that the conditions that caused the horse to be kept in the respondent’s care have ceased to exist and, as a result, the horse shall not be returned to the applicant pursuant to the Application; and

5. The January 2, 2024 SOA is varied to $5,599.15 ($5,537.00 for Boarding Costs and $62.15 for Veterinarian Costs).

ANALYSIS

APPEAL 15532/ACRB: The Keep in Care Decision

15Section 31(6) of the PAWS Act permits the respondent to decide to keep an animal that was removed under s. 31(1) in the respondent’s care if:

(a) the respondent determines it is necessary to relieve the animal’s distress; or

(b) the respondent has reasonable grounds to believe that,

(i) the animal may be placed in distress if returned to its owner or custodian; or

(ii) the animal may be trained to fight another animal if returned to its owner or custodian.

16On December 27, 2023, Regional Supervisor Josh Matson, Chief Animal Welfare Inspector Delegate (Delegate Matson), issued a Keep in Care Decision for the Animals, stating that it was necessary to keep them in the care of the respondent to relieve them of distress, and that he had reasonable grounds to believed that the Animals may be placed in distress if returned to the appellant.

17Delegate Matson testified that he based his decision to Keep the Animals in the care of the respondent on the following:

i. A meeting with Inspector Brûlé to discuss the facts of the file;

ii. O. Reg. 444/19;

iii. All outstanding compliance orders;

iv. Dr. Amy Gaw’s notes outlining concerns from May 2023 and October 2023;

v. The NFACC Codes of Practice;

vi. Approximately 300 photographs and videos taken by AWS Inspectors from March 31, 2023 to December 14, 2023; and

vii. A Summary of the file provided by Inspector Brûlé dating back to March 31, 2023.

18Much of the respondent’s evidence was not helpful to me because it addressed inspections and orders issued well before those that resulted in the removal of the Animals, as well as addressing other animals on the appellant’s farm not part of the subject matter of this hearing. The photographs and videos were also not helpful, first because they were not indexed except by date, and secondly because they were not specifically referenced in the affidavits. I could not tell what the respondent wanted me to infer from these, nor whether they were of animals who were removed. Similarly, while both Inspector Brûlé and Delegate Matson referred to various NFACC¹ Codes of Practice, and included them as Exhibits, neither of them drew my attention to any of the requirements and how they informed the orders, the removal or the Keep in Care Decision.

19In the reasons provided in the Keep in Care Decision, Delegate Matson wrote:

I believe, based on review of Veterinary reports and the summary prepared by the AWS Inspector, Bradley is either not willing or doesn’t have the means to provide the proper care to the animals. The animals need proper feed to help increase body conditions, water, and shelter with heat and proper bedding for the animals’ current body conditions.

i) Was it necessary for the respondent to keep the Animals in its care to relieve the Animals of distress when the Keep in Care Decision was made?

20For the reasons that follow, I find that it was unnecessary for the respondent to keep the Animals, other than Oliver, the horse, in its care to relieve their distress when the CAWI made its Keep in Care Decision on December 27, 2023.

Oliver, the horse

21Oliver’s body condition score (BCS)² was between 2 - 2.5/9 when he was removed from the appellant’s farm on December 14, 2023. At the time of the hearing, he had only reached between 3.5 - 4.0/9 while in the respondent’s care.

22The respondent submitted that Oliver is in distress as he continues to have difficulty gaining weight. Delegate Matson testified that he is unwilling to return Oliver until he reaches a BCS of 5/9, which will allow for him to lose some weight at the Property without being at risk of distress.

23The appellant did not dispute Oliver’s low BCS, although she submitted that she did everything that Dr. Gaw, her attending veterinarian recommended to help Oliver gain weight.

24I find that it was necessary for the respondent to keep Oliver in the CAWI’s care to relieve his distress when the Keep in Care Decision was made on December 27, 2023. I am satisfied with the CAWI’s position that Oliver needs to reach a BCS of 5/9 for him to not be in distress.

The pigs and piglets

25I find that it was not necessary for the respondent to keep the pigs and piglets in its care to relieve their distress when the Keep in Care Decision was made on December 27, 2023. While they were removed for failure to comply with the orders, they were provided necessaries by the respondent as established by the evidence of Inspector Brûlé. This evidence included her testimony when she said that she had pre-inspected the boarding facility to ensure that it could provide necessities consistent with the Standards of Care provisions of Ontario Regulation 444/19: Standards of Care and Administrative Requirements. An exhibit provided a description of the necessities provided by the boarding facility. The respondent made no submissions that either the pigs or piglets continued to be in distress.

The poultry (chickens) and waterfowl (ducks)

26I find that it was not necessary for the respondent to keep the chicken and ducks in the CAWI’s care to relieve their distress when the Keep in Care Decision was made on December 27, 2023. While they were removed for failure to comply with the orders, they were provided necessaries by the respondent as established by the evidence of Inspector Brûlé. This evidence included her testimony when she said that she had pre-inspected the boarding facility to ensure that it could provide necessities consistent with the Standards of Care provisions of Ontario Regulation 444/19: Standards of Care and Administrative Requirements. An exhibit provided a description of the necessities provided by the boarding facility. The respondent made no submissions that the chickens or the ducks continued to be in distress.

Conclusion on necessity of keeping animals in care because they were in distress on December 27, 2023

27In summary, I find that when Delegate Matson made his Keep in Care Decision on December 27, 2023, it was not necessary to keep the Animals in its care to relieve their distress, with the exception of Oliver the horse. Other than Oliver, the respondent’s evidence did not indicate that the Animals continued to be in distress.

ii) Did the respondent have reasonable grounds to believe that the Animals would be placed in distress if they were returned to the appellant when the Keep in Care decision was made?

28For the reasons that follow, I find that the respondent did not have reasonable grounds to believe that the Animals, other than Oliver, would be placed in distress if they were returned to the appellant when the Keep in Care Decision was made on December 27, 2023.

29Delegate Matson testified that the Summary Report provided to him by Inspector Brûlé indicated some improvements were found during her inspections, but gave no indication what the improvements were, for which animals, or relating to which orders.

30Delegate Matson summarized the conditions found by Inspector Brûlé on December 14, 2023, justifying the removal of the Animals on that date on the grounds of Bradley’s failure to comply with the orders specific to those conditions.

31In the final paragraph of Delegate Matson’s affidavit, he stated that “I made this decision as there was no information before me to indicate the conditions which caused the animals to be in distress from March 30, 2023 to December 27, 2023 had ceased to exist and that AWS had been provided no supporting information or documents from Ms. Bradley that she would be able to provide proper care to the animals.” He went on to state that he believed returning the animals to the appellant would place them in distress.

32Under cross-examination, Delegate Matson stated that he didn’t contact the appellant regarding the status of her efforts to comply with the orders, nor have follow-up inspections conducted before making his decision.

33The appellant testified that she was unaware that Inspector Brûlé had made a recommendation to Delegate Matson for the Keep in Care Decision and was unaware of the Summary File she submitted to him with the full history of the farm, including orders on all the other animals on the farm going back to March 2023. The appellant submitted that Delegate Matson ought to have contacted her before making his decision for more up to date information about the conditions, stating that she had made improvements to the conditions of the Animals.

34The Summary File was not shared with the appellant or the Board. However, as Delegate Matson referenced the history going back to March 2023 for all of the farm animals and failed to list any of the improvements made by the appellant, I am not persuaded that Delegate Matson had reasonable grounds on which to make his decision two weeks after the removal of the Animals. In short, his decision was based on information that went well beyond the animals removed, and well beyond the orders issued for their care. While he relied on various documents and photographs, he did not have current information for the two weeks between the removal of the Animals and his Keep in Care Decision.

35While Delegate Matson testified that he was not responsible to confirm the conditions before making his decision, the PAWS Act is clear that he must have reasonable grounds to believe the Animals would be placed in distress if returned.

36I agree with the appellant that the PAWS Act does not require her to let the respondent know that she is in compliance with the orders. In fact, had she tried to reach Inspector Brûlé, she would have been unable to do so because Inspector Brûlé was on vacation from December 19, 2023 until January 2, 2024. I agree with the appellant that it is the respondent’s responsibility to make its decision based on more current information than the December 14, 2023 inspection.

37The information that Delegate Matson reviewed in his affidavit is not specific to the animals removed, nor does he give sufficient consideration to the appellant for any improvements she made. While the appellant may not have been fully in compliance with the orders on December 14, 2023, it appears that she was following the direction of her attending veterinarian Dr. Gaw and Inspector Brûlé by continuing to make improvements.

The Horse, Oliver

38I find that the respondent had reasonable grounds to believe that Oliver would be placed in distress if returned to the appellant when it made the Keep in Care Decision, for the reasons that follow.

39Dr. Amy Gaw, the respondent’s witness, provided a history of her examinations of Oliver since October 2022 as the appellant’s attending veterinarian. She described her recommendations to the appellant to help him gain weight, including a specific diet, separating him from other animals who competed for his food and bullied him, and treating him for parasites. She also recommended that he wear a blanket below -10°C, and be kept indoors at night, and that the appellant address the flooding issue in his stall.

40Dr. Nicola Jackson, also the respondent’s witness, described her inspection of the Property and animals on October 10, 2023. In this she described Oliver’s BCS as 2.5/9, that his stall was full of wet straw, that there was a small amount of hay on the ground mixed with the wet straw. She described his water as being dark brown and opaque and soiled with straw and manure, and that there was no other feed provided.

41Inspector Brûlé testified that she removed Oliver as the appellant had failed to comply with orders issued on October 11, 2023 (11:10 a.m.) for all livestock and equine, and on October 11, 2023 (11:20 a.m.) for various animals including Oliver, and on November 30, 2023 (12:40 p.m.). Her testimony regarding her inspection on December 14, 2023 focused on Oliver’s BCS which had dropped to 2.0 – 2.5. She did not otherwise reflect on the status of the appellant’s efforts to comply with the three orders as they related to Oliver.

42I accept the appellant’s testimony that she had taken steps to comply with the three orders, including:

• Separating Oliver from other horses;
• Following Dr. Gaw’s recommended feed plan, with a suitable substitute for the juvenile horse feed recommended, along with high protein pellets, and oats and barley;
• Treating Oliver for parasites;
• Adding a heat trace line and heated buckets, and daily fresh water;
• Using a dephier to break the ice skim over the water, several times a day;
• Creating a stall for Oliver in the barn, and added a raised floor to address flooding; provided straw/hay bedding thick enough to encourage laying down; and
• Blanketing Oliver when the temperature dipped below -10°C.

43The evidence demonstrates that the appellant has done much to comply with the concerns raised by her veterinarian, Dr. Gaw, and Inspector Brûlé, and has been an active participant in problem solving regarding Oliver’s failure to thrive.

44Despite this, I find that Oliver did not thrive in his weight gain under her care. His BCS improved under the respondent’s care, having reached a score of between 3.5 - 4.0 in just two months.

45In closing, the appellant submitted that the respondent failed to consider the challenges of farming in a northern and remote region. I agree with the respondent that this does not relieve the appellant from her responsibility to provide adequately for her animals.

46The respondent testified that the appellant must be able to demonstrate that she is able to provide appropriate feed for Oliver’s nutritional needs, whether pre-mixed, or mixed by hand. Failing to meet these requirements would be to return him into conditions that could cause him distress.

47The appellant provided no plan for how she would provide for Oliver’s weight gain and maintenance. The appellant needs to demonstrate a plan to meet Oliver’s nutritional needs, addressing Dr. Gaw’s December 14, 2023 report to AWS. The plan must address the energy ration required for a juvenile horse and include the provision of good quality grass hay and protein, as well as corn or vegetable oil.

The Pigs and Piglets

48For the reasons that follow I find that the respondent did not have reasonable grounds to believe that the pigs and piglets would be placed in distress if they were returned to the appellant when it made its Keep in Care Decision. This is largely because it did not have current information regarding the improvements the appellant had made to the pigs’ conditions.

49Dr. Gaw testified regarding the pigs’ conditions during her October 24, 2023 visit, and Dr. Jackson testified regarding the pigs’ conditions during her October 10, 2023 visit. The conditions that they noted were largely reflected in the orders issued by Inspector Brûlé.

50Dr. Gaw inspected the pigs and piglets after their removal on December 14, 2023, testifying that the pigs had a BCS of 2/5, but otherwise appeared healthy. She testified that most of the piglets had a BCS of 2/5, but no other signs of illness.

51Inspector Brûlé testified that she removed the pigs and piglets as the appellant had failed to comply with orders issued on October 11, 2023 (11:10 a.m.) for all livestock and equine, and on November 30, 2023 for all of the pigs (including those not removed). Her testimony regarding her inspection on December 14, 2023 focused on the pigs’ water being frozen, the bedding for the pigs being wet, and that the piglets showed signs of cold stress. She noted that a heat source had been provided but that it was too high up, and the heat was diffused. She also noted crowding was not an issue, but did not otherwise reflect on the status of the appellant’s efforts to comply.

52Delegate Matson testified that he would need evidence of continual water for the pigs and piglets to be returned.

53The appellant testified that she had taken steps to comply with the orders. I accept her testimony on these points:

• She ordered a bottle/nipple water system (received December 20, 2023 and installed on January 24, 2024);
• The water troughs have heaters; despite this when the water was at risk of freezing, fresh water would be provided by buckets;
• Frozen water was broken several times a day with a dephier;
• Multiple types of enrichment were provided;
• Heat lamps provided;
• Bedding is a deep layer of straw when available; otherwise hay bedding is provided, and topped up nightly;
• Artificial lighting has been installed; plug in lights destroyed by pigs have been replaced; electrician has been contacted for additional lighting solutions; and
• Stalls have multiple large windows.

54The appellant’s evidence was corroborated by her two witnesses, who testified that she had installed artificial lighting and the stall was brightly lit, that heaters had been installed, and that the water troughs had heaters. The appellant’s testimony on the types of enrichment she provided was corroborated by photographic evidence.

55On the basis of the appellant’s evidence, I find that she had made many improvements to the pigs’ conditions, and while the water system was not installed on December 27, 2024 it had been delivered and was ready to be installed. She did have other interim measures in place to address access to water, having satisfied Delegate Matson’s condition for the return of the pigs and piglets.

56Despite my finding that AWS lacked reasonable grounds to believe the pigs and piglets would be returned to a state of distress, I recognize that the appellant has ongoing responsibilities to ensure that the pigs and piglets are not placed in distress by continuing to comply with the orders. She will need to ensure their bedding is kept dry, and that the pigs have access to unfrozen water and to sufficient and nutritious food. The appellant may need to reposition the heat lamps to ensure that there is sufficient heat provided to the piglets that they don’t exhibit signs of cold stress.

The Poultry (chickens) and Waterfowl (ducks)

57I find that the respondent did not have reasonable grounds to believe that the chickens and ducks would be placed in distress if they were returned to the appellant when it made its Keep in Care Decision, for the reasons that follow. This is largely because it did not have current information regarding the improvements the appellant had made to their conditions.

58Dr. Gaw testified in her visit on October 24, 2023 that the appellant told her that the three silkie chickens were dropped off at her property over Thanksgiving. She reported that they were quite thin and made recommendations regarding their environment. She did not examine any of the birds other than this until after their removal on December 14, 2023 when she testified that the ducks had a BCS of 2/5 but had no other issues. She noted that the chickens all had feather lice, all had a BCS of 2/5, and that one had bumblefoot on one foot.

59Dr. Jackson testified that on October 10, 2023 that the chicken coop at the front of the property (which housed the chickens and ducks removed) was warm, dry, amply bedded, with access to water and feed.

60Inspector Brûlé testified that she removed the chickens and ducks as the appellant had failed to comply with the order issued on November 30, 2023 (11:55 a.m.) specific to them. Her testimony regarding her inspection on December 14, 2023 focused on water not present, but on other occasions being frozen and on one occasion being contaminated with bedding. She also testified that the birds were thin and that there was no food present during her inspection.

61While an order issued on October 11, 2023 also referenced “poultry/barnyard fowl, waterfowl”, it appears that the items that are relevant to the poultry and waterfowl (ducks) are also provided in the order issued on November 30, 2023.

62The appellant testified that she had taken steps to comply with the orders, and I accept her testimony on these points:

• The water dish was being cleaned at the time of the inspection, and that she has now installed a second water tray to ensure the birds are not without water while the other tray is being filled;
• Fresh water is provided daily, and under a heat lamp to prevent freezing;
• A warming dish was purchased to place under the water tray;
• Food is provided in multiple dishes;
• Heaters were already provided in the coop, but it is also insulated;
• Straw and hay are provided in nesting boxes.

63Delegate Matson testified that for the appellant to have her chickens and ducks returned to her, she needs to show the respondent that the conditions that caused them to be kept in the respondent’s care have ceased to exist, and that he would need evidence of a heat source in the chicken coop.

64The appellant testified that she has complied with the orders including providing the coop with heaters. On the basis of the appellant’s testimony, I find that she had made many improvements to the conditions of the chickens and ducks. As she has heaters in the coop, she has satisfied Delegate Matson’s condition for the return of the chickens and ducks.

65Despite my finding that AWS lacked reasonable grounds to believe the poultry and ducks would not be returned to a state of distress, I recognize that the appellant has ongoing responsibilities to ensure that the poultry and the ducks are not placed in distress by continuing to comply with the orders. She will need to ensure that their bedding is sanitary, and that they have access to sufficient and nutritious food such that their BCS improves.

Conclusion

66In summary, I find that Delegate Matson did not establish reasonable grounds when he made his decision on December 27, 2023, that with the exception of Oliver the horse, the Animals would be placed in distress if they were returned to the appellant. His testimony did not reflect the improvements the appellant made.

iii) Should the Animals be returned to the Appellant?

67I find that, with the exception of the horse, the Animals should be returned to the appellant because the CAWI did not establish that they continued to be in distress, nor reasonable grounds that they would be placed in distress if returned to the appellant when he made his Keep in Care Decision on December 27, 2023. He did not base his decision on the current conditions which would have shown the appellant’s efforts to comply with the orders.

68I find that the horse should not be returned to the appellant because Oliver continues to be receiving necessities for his distress, specifically ensuring that he receives the quality and quantity of food necessary to ensure that he reaches the goal BCS of 5/9. To return him before the appellant can demonstrate that she is able to provide him the necessary food would be to place him in distress.

APPLICATION 15540/ACRB: Application for the Return of the Animals

i) Have the conditions that caused the Animals to be kept in the respondent’s care ceased to exist?

69Given my finding on the appeal of the Keep in Care Decision, I find that it is not necessary for me to determine the Application given that I already found that the Animals be returned, except for the horse.

70For the reasons that follow, I find that the applicant has failed to prove on a balance of probabilities that the conditions that caused the horse to be kept in the respondent’s care have ceased to exist and, as a result, the horse shall not be returned to the applicant pursuant to the Application.

71Section 38(4) of the PAWS Act states that:

An owner or custodian of an animal that has been 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 the CAWI’s care have ceased to exist.

72Dr. Gaw submitted that since October 2022, Oliver had a low BCS. Dr. Gaw treated Oliver for parasites, and recommended a better quality hay than what the appellant was providing him. She recommended a juvenile diet meant specifically for young, weaned, growing horses. Over the course of the next year, Dr. Gaw recommended separating Oliver from other horses and animals that would compete with him for food. At one point when Oliver again lost weight, Dr. Gaw reported that he had bite marks/scars along both sides of his body and suggested separating him from the animals throughout the day so he wouldn’t be bullied. Dr. Gaw also recommended providing Oliver with a shelter, and making the barn more suitable to withstand flooding.

73Dr. Gaw reported that by October 24, 2023, Oliver had improved, with a BCS of 2.0 - 2.5/9, as a result of the appellant’s efforts. Despite this, she noted that his hay was all over the floor and mixed with his straw. She noted the appellant had raised the flooring in Oliver’s stall to keep it dry. Dr. Gaw again gave detailed instructions regarding Oliver’s feed, noting that the grass hay has to be free of mold and needs a better leaf content that what he was being fed. Dr. Gaw also recommended providing him a more suitable bowl for his food. Again, she recommended deworming Oliver.

74On November 20, 2023 when Inspector Brûlé inspected Oliver, she gauged his weight to be 866 pounds using a weight tape. On December 5th she gauged his weight to be 872 - 886 pounds. On December 14, 2023 when she removed Oliver, Oliver’s weight had dropped to 784 pounds.

75In an Application, the applicant is responsible for providing evidence to show that the conditions that caused an animal to be kept in the CAWI’s care have ceased to exist. While the appellant was able to show that she had addressed many of the issues related to Oliver’s care, she had been unable to improve his BCS and in December it had actually worsened. The appellant’s position regarding the difficulty to source the necessary hay and feed in the northeast is understood, but is of no value in making my findings. The appellant has failed to prove that the conditions that caused Oliver to be kept in the CAWI’s care have been addressed.

ii) Should Oliver be returned to the appellant?

76The Application for the return of the Animals, specifically for Oliver, is denied as the applicant has failed to satisfy me that she is able to provide Oliver the nutrition necessary for him to retain the BCS he has now reached while in the CAWI’s care. She maintains that she has addressed all of Dr. Gaw’s recommendations, yet the history I summarized above shows that on each visit Dr. Gaw indicated that she was not providing the necessary quality of feed to achieve a weight gain.

77While the respondent testified that Oliver is a “hard keeper”, he has thrived in the CAWI’s care, increasing his BCS from 2 - 2.5 to 3.5 - 4.0 in just two months.

APPEAL 15534/ACRB: Statement of Account

i) Should the January 2, 2024 SOA in the amount of $8,872.45 be confirmed, revoked, or varied?

78I vary the Statement of Account to $5,599.15 reflecting $5,537.00 for Boarding Costs and $62.15 for Veterinarian Costs, for the reasons that follow.

79Section 35(1) of the PAWS Act permits the respondent to serve on the owner of an animal a statement of account respecting any costs incurred in relation to the animal if the costs were incurred in relation to an animal that has been removed by AWS and kept in the respondent’s care. Section 35(3) of the PAWS Act states that an animal’s owner is liable for the amount set out in a statement of account.

80The January 2, 2024 SOA relates to the 31 animals removed, and is summarized as follows:

Boarding Costs (December 14 – 27, 2023) $8,324.40 Veterinary Costs (December 14, 2023) $ 548.05 Total Costs $8,872.45

Boarding Costs

81The boarding costs reflect the period between the day the Animals were removed, and December 27, 2023, the day that Delegate Matson made his Keep in Care Decision. The boarding costs are substantiated by a single invoice issued by the facility that housed all of the animals.

82Inspector Brûlé stated in her affidavit that the boarding facility was one inspected by AWS, found to be in good condition, and met all the standards of care for the Animals. She stated that she believed the boarding costs to be reasonable and well within the industry standards for the various types of animals, and that “in my experience as an inspector this is the standard rate for boarding” for each of the animal types.

83The daily boarding rates charged were as follows:

Horse $30 Adult Pigs $30 Piglets $15 Poultry $15

84In her affidavit, Inspector Brûlé stated that the boarding rates fall within a reasonable expectation for availability, quality of care, risk and support provided by a boarding facility. She added that the costs were necessary because the animals required a physical re-location to address their identified distress, which was a direct result of inadequate living conditions.

85Inspector Brûlé further testified that:

1. She had conducted inspections of the boarding facility, and the animals were all being provided added care;
2. Oliver is improving, but was still not at the target body condition score of 5/9;
3. The boarding facility was approximately 200 km away from the appellant’s property; she hadn’t had time to locate other, closer approved boarding facilities;
4. AWS was charged a daily rate instead of the more cost effective monthly rate because they had no way of knowing how long any animal would be boarded.

86The appellant’s witness Rawad Ben-Suleiman contacted the boarding facility regarding its boarding rates, and in her affidavit stated:

1. Outdoor horse boarding is $500 per month, which includes grain feeding;
2. Indoor horse boarding is $30 per day;
3. Monthly boarding in pens for pigs is $150 per month;
4. They don’t generally provide boarding for chickens;

87The appellant stated in her affidavit that she finds the rates are not reasonable and have contributed to an excessive bill. She referenced the rates she charges for boarding animals: these include monthly rates for fowl at $5 per bird, $40 per pig, and $20 per piglet, and $300 per horse boarded indoors. In cross-examination she admitted that boarding is only for friends’ animals, and the respondent suggested that this was the basis for lower rates.

88The appellant provided examples of boarding horses in North Bay ($360 per month), and in Sudbury ($250 per month), and provided copies of the rates in her exhibits. As the respondent pointed out, these are from online advertisements and not verified. I note the latter rate is for outdoor boarding, while the former is for indoor boarding.

89The appellant submitted in her closing arguments that the boarding rate for the chickens was excessive and exceeding the costs of caring for them or even purchasing them. I find that it is not relevant what her own costs for caring are as she has not submitted a cost which would including housing, staffing, and feeding. It is also not relevant what the costs for purchasing her chickens are. The appellant did not submit competitive costs from another boarding facility. When the appellant’s representative did research regarding boarding rates, the boarding facility referred her to another facility for boarding rates for chickens and ducks, but she failed to submit any evidence of researching this further.

Oliver, the horse

90I find the boarding rate for Oliver to be consistent with the appellant’s research; Oliver was required to be provided with indoor boarding based on the veterinarian’s recommendation to the appellant. I have not considered the two advertisements submitted by the appellant because they have not been verified.

The Pigs and Piglets

91I find the boarding rate for the adult pigs, at $30 per day ($900 per month) to be significantly higher than the $150 per month the appellant was quoted. While I can appreciate the respondent’s position that they can only get a daily rate because they don’t know how long an animal will be boarded, I am also mindful that the respondent indicated that they did not go “out for tender” when selecting the boarding facility.

92I cannot accept this large a discrepancy in boarding rates. The respondent’s justification is not reasonable given that:

1. They single-sourced the boarding facility, without going to tender; therefore, the boarding rate charged is not proven to be competitive;
2. The boarding facility is an “approved” boarding facility, used for boarding many animals removed by AWS, not just the appellants’ Animals. In other words, there is a historical relationship, and one where a more competitive rate should be expected;
3. While the respondent has no way of knowing how long animals will be boarded, there was no indication that they were limited in the number of available days any of the animals could be boarded. In its closing arguments, the Respondent referred me to the “Geddes” case, without citation as a reference for the pigs’ boarding costs. I prefer the appellant’s research as it is specific to the boarding facility’s monthly boarding cost.

93I find that the rate charged for boarding the adult pigs is not reasonable, and vary it to $150 per month or $5 per day.

94As the appellant did not provide an alternate rate for boarding piglets, and the respondent’s evidence is AWS was charged $15 per day per piglet, I find that this rate is too high based on my finding for the adult pigs. I vary the boarding charge to no more than $5 per day.

The Poultry (chickens) and Waterfowl (ducks)

95As the appellant did not provide evidence to counter the respondent’s evidence for the boarding rate for the chickens and ducks, I confirm the rate of $15 per day. I also accept it on the basis that the appellant found that the boarding facility does not generally board chickens and ducks, and therefore their costs may have been higher as a result. That being said, it is possible that had they been boarded at a facility who boarded this species, the rates might have been lower.

96I acknowledge that the Animals were removed because they were in distress, and the boarding charges included the period from the date of removal to the day the Keep in Care Decision was issued, I find it reasonable and supportable that boarding charges reflect necessaries to relieve distress. However, based on my analysis, I find the total boarding costs should be varied as follows:

Horse (14 days at $30 per day) $ 420.00 Adult Pigs (4 pigs; 14 days at $5 per day) $ 280.00 Piglets (9 piglets; 14 days at $5 per day) $ 630.00 Chickens and ducks (17; 14 days at $15 per day) $3,570.00 Sub-total $4,900.00 GST (13%) 637.00 TOTAL $5,537.00

97In conclusion, I vary the total boarding costs to $5,537.00 for the reasons provided above.

Veterinarian Costs

98The veterinarian costs are substantiated by a single invoice, issued by Dr. Gow for her inspection of the animals on the day of removal, at a haul-in veterinary clinic on the way from the appellant’s farm to the boarding facility.

99The veterinarian’s invoice identified the following charges for the inspection of the Animals on the day of removal, at a haul-in veterinary clinic:

Call Fee – Haul in facility $ 80.00 Time to exam pigs, chickens, horse $ 350.00 Vetolice - Measuring cup $ 55.00 Sub-total $ 485.00 GST (13%) $ 63.05 TOTAL $ 548.05

100Inspector Brûlé stated in her affidavit that the veterinary examination was crucial for evaluating their medical conditions and guaranteeing they received necessary care to alleviate distress and to determine if they had any disease which could then put animals already at the boarding facility at risk. She also stated that Oliver needed to be assessed so the veterinarian could approve his transportation as per federal regulations. While she provided a link to the regulation in her affidavit, she provided no direction as to where I might find the information.

101The appellant submitted that Dr. Gow was the Animals’ regular veterinarian, and had already evaluated their medical conditions and provided instructions to the appellant regarding the care required, which could have been provided to the boarding facility.

102I agree with the appellant that the respondent has not sufficiently explained why the additional veterinarian examination of the Animals, with the exception of Oliver, was necessary. On this basis I vary the examination fee for them to zero.

103Examining Oliver to ensure that his transportation meets federal regulations is a transportation, or removal cost, not a necessity to relieve distress. While the respondent pointed out that the PAWS Act has been amended to now include transportation costs, this wasn’t the case on December 14, 2023 when the cost was incurred. On this basis I vary the examination fee for Oliver to zero.

104As the call fee to the haul-in facility was for the purpose of examining the animals, I vary that cost to zero as well.

105The veterinarian provided treatment to the Animals when she treated them for lice. Lice is not a disease, and the respondent indicated that lice is prevalent in farm animals. For that reason, the Animals might have been examined at the boarding facility and treated. Nevertheless, the cost for treatment will be allowed as it would have been incurred at the boarding facility if not at the haul-in spot.

Conclusion

106I vary the SOA dated January 2, 2024 to $5,599.15 reflecting $5,537.00 for Boarding Costs and $62.15 for Veterinarian Costs.

ORDER

107I order that:

a. The following Animals be returned to the appellant:

i. The pigs and piglets;

ii. The poultry (chickens) and waterfowl (ducks).

b. The January 2, 2024 SOA is varied to $5,599.15 reflecting $5,537.00 for Boarding Costs and $62.15 for Veterinarian Costs and order that these costs be paid as confirmed.

Footnotes

1. 1National Farm Animal Care Council. The various Codes of Practice are funded by Agriculture and Agri-Food Canada. They are not law, but industry-developed guidelines for animal care.
2. 2Body condition score is a quantitative measure of an animal’s body fat for animals. There are two scales used, one is from 1-9, the other from 1-5. The ideal weight is the mid-point of either scale.