Animal Care Review Board
Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Maureen Somers Appellant
and
Chief Animal Welfare Inspector Respondent
DECISION AND ORDER
Order Made By: Ziba Heydarian, Vice-Chair
For the Appellant: Maureen Somers, Self-represented For the Respondent: Jessica Holroyd, Counsel Victoria Crocker, Regional Supervisor, Animal Welfare Services (AWS) Rachel Falls, Inspector, AWS
Heard by Teleconference: February 2, 2024
A. BACKGROUND
1Maureen Somers, the Appellant, is the owner of three geriatric horses named Jessica, Cara, and Gorgeous, and one geriatric pony named Candy.
2On October 19, 2023, Inspector Rachel Falls of Animal Welfare Services (AWS) attended the Appellant’s property located in New Lowell, Ontario (the “Property”) due to a concern about an emaciated horse in need of urgent veterinary care. This same horse was later euthanized, but AWS still attended due to further complaints about other horses on the Property having poor body conditions and overgrown hooves.
3On October 23, 2023, Inspector Falls issued an Order requiring the Appellant to have the animals examined by a veterinarian and provide the documentation to AWS in order to relieve the horses’ distress. The Order was issued under s. 30(1) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (Act). This Order is not under appeal.
4On November 27, 2023, Inspector Falls obtained a distress warrant and reattended the Property along with veterinarian Dr. Gary Halbert and AWS Inspector Megan Archer. Dr. Halbert performed a hands-on physical examination of the horses and based on his recommendations, Inspector Falls decided to revoke the original Order and replace it with a new order to provide more detailed guidance to the Appellant.
5On November 28, 2023, Inspector Falls served the Appellant with a Notice of Revocation and/or Replacement of an Order to the Owner or Custodian of Animal(s) (the “Replacement Order”), which had a new compliance date of January 8, 2024.
6In brief, the Replacement Order required the Appellant to:
- Have a full oral assessment of all four horses completed by a veterinary dentist and provide the documentation to AWS;
- Provide pain medication to Cara to alleviate left forelimb lameness; and
- Provide additional wind protection for the four horses to alleviate further weather-related stress.
7On December 8, 2023, the Appellant appealed the Replacement Order to the Animal Care Review Board (Board).
8The appeal proceeded by way of a teleconference hearing on February 2, 2024, and closing submissions were provided in writing on February 16, 2024.
B. PRELIMINARY ISSUES
Late Service of Evidence
9During her testimony, the Appellant notified the Board that the Respondent served their evidence late.
10While the Board received the Respondent's documents within the deadline, the Appellant advised that she received the Respondent’s book of documents one day past the deadline of January 24, 2024, as set out in the Case Conference Report and Order dated January 11, 2024.
11The Respondent stated that it attempted to serve the Appellant in person on various occasions because the Appellant did not have access to a computer. However, the Appellant was not at her Property during these delivery attempts and therefore the inspector attempted to send the documents by Purolator on January 24, 2024. This service attempt was also unsuccessful, but the Respondent was ultimately able to serve the Appellant in person at the Property on January 25, 2024.
12Furthermore, the Respondent argued that the Appellant raised this issue in the middle of the hearing, rather than at the beginning, and she did not claim that the receipt of the disclosure one day after the Board’s deadline impacted her ability to proceed with the hearing.
13In deciding to accept the Respondent’s evidence, despite late disclosure, I considered that the Respondent had made several efforts to serve the Appellant at her Property. More importantly, I considered that the Appellant did not explain how she was prejudiced by the late disclosure or how the delay affected her ability to prepare for the hearing. Therefore, the Respondent’s book of documents was accepted by the Board as the probative value of the late evidence outweighed any prejudice that would be caused to the Appellant from admitting it.
C. ISSUES
14The issues in dispute in this matter are:
- Were the horses in distress at the time the Replacement Order was issued?
- Should the Replacement Order be confirmed, revoked, or modified?
D. RESULT
15For the reasons that follow:
- I find that the horses were in distress on certain grounds set out in the Replacement Order;
- The Replacement Order is modified to remove the requirement that the Appellant must provide additional wind protection for the four horses to alleviate further weather-related stress.
E. LAW
16Section 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
17Proper care includes care in compliance with the minimum standards prescribed by the Act and its Regulations, 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.1
18Under the Regulations, the standard of care for captive wildlife requires that they be provided with appropriate care. Their enclosures must be of an adequate size to facilitate and stimulate natural movement, but also shelter them from the elements.2
19Section 30 of the Act states:
30(1) 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.
20Pursuant to section 38(1) of the Act, owners of animals can appeal an order from an animal welfare inspector to the Board, and according to section 38(9) after a hearing the Board has the power to confirm, revoke or modify an order made under section 30.
F. EVIDENCE AND ANALYSIS
Issue 1: Were the horses in distress?
Respondent’s Position
21The Respondent provided evidence that the horses were in distress based on the testimony and reports of veterinarian Dr. Halbert, as well as the observations of Inspector Falls and Inspector Archer.
22Dr. Halbert’s report dated November 28, 2023, noted that the geriatric horses had poor body conditions and their teeth had irregular and sharp surfaces. The report mentioned that senior horses tend to have difficulties chewing due to these dental irregularities, which makes them more sensitive to extreme weather conditions.
23During the hearing, Dr. Halbert testified that the absorption of nutrients tends to decrease as the age of horses increases, therefore oral care must be maintained so the animals can sustain themselves in an outdoor environment. While altering the horses’ feed could help, oral care is essential for the absorption of nutrients and changing the feed alone would not be sufficient. Over time, if the nutrient intake is not sufficient to meet the needs of the animals, they will start to lose weight and may eventually go into a catabolic state, causing them to lie around more and possibly collapse. Dr. Halbert testified that while the four geriatric horses in question were not at this stage yet, without corrective action they could get there.
24Regarding Cara’s leg, Dr. Halbert noted that her lower left leg had an enlarged knee and misshaped lower leg on the front left limb. This caused Cara to limp and the more she moved around the limping worsened, which Dr. Halbert took as an indication of discomfort. Dr. Halbert noted that there was no inflammation, but further assessment and possible medication would be helpful to see if Cara’s comfort could be improved and her overall mobility increased.
25Lastly, when asked how the shelter impacted the horses, Dr. Halbert testified that the shelter provided by the Appellant was not “inadequate”, but rather it was not “optimal”. While the Property had some areas for windbreak and other areas with overhead coverage, these were open to the sides. He stated that the shelter would not have a huge impact on the horses' body conditions, but if it was not improved upon, it could contribute to a decline in their overall health. Also, horses with poor body conditions could be more affected by harsh weather conditions as they have less fat storage and would use their core temperature to survive.
26On January 20, 2024, Dr. Halbert examined the horses again after they were removed from the Property for non-compliance with the Replacement Order. He found that Candy and Jessica had lost significant weight and had multiple areas of hair loss and dry skin since he first examined them in November 2023. Gorgeous and Cara had maintained their body conditions, but they had some visible patches of hair loss. All the horses were said to have overgrown hooves requiring corrective trimming. Dr. Halbert also noted that Cara had some problems with her vision, but her limping was the same as in November. Dr. Halbert’s report specifically stated that the barn owner observed feed falling from the horses’ mouths while chewing, which further supports his finding of dental irregularities and difficulty chewing.
27Additional material filed by the Respondent, including the inspectors’ testimony, notes, and will say statements, were consistent with Dr. Halbert’s evidence and supported a finding of distress. Inspector Falls testified that when she first attended the Property in October, the weather was approximately 14 degrees Celsius and overcast, but the horses were already exhibiting signs of piloerection, which showed that they were trying to preserve their warmth. Overall, the Respondent argued that the animals’ poor body conditions were contributed to by dental irregularities, lack of shelter from the elements, and limpness in Cara’s leg.
Appellant’s Position
28The main evidence adduced by the Appellant was her own testimony, which centered around her experience training and raising horses, and with naturopathic medicine. Based on the reasons provided below, the Appellant disagreed that her horses were in distress.
29The Appellant testified that she had decades of experience raising horses and had won contests for training thoroughbred horses in Canada. She stated that over the years she had gained a great deal of experience healing animals on her own with naturopathic remedies, and she provided a list of books she referred to for information on healing horses.
30With regards to the oral health of the horses, the Appellant testified that teeth on any aged horse will have irregular surfaces. Having had a poor experience with equine dentistry several years ago, the Appellant stated that she prefers to manage the horses’ health issues using a naturopathic approach that focuses on eliminating the cause rather than the symptoms.
31The Appellant also provided extensive evidence on the feed she provided to the horses, including feed with additional supplements for geriatric horses. She provided pictures and receipts of the additional horse feed she had purchased between December 12, 2023 and January 17, 2024, following the date the Replacement Order was served.
32The Appellant testified that the new feeding routine she had implemented, along with additional supplements, had helped the horses gain weight and even reduced the limp in Cara’s left leg. She also claimed that her track record of raising long-lived horses that were healthy for upwards of 27 to 30 years indicated they were well taken care of.
33The Appellant’s position on the pain medication was that Cara has a misshaped left lower leg caused by the enlarged ossified knee joint that was the result of an injury 15 years ago. She claimed that painkillers would not de-ossify Cara’s left knee and may compound the problem further.
34As to the requirement that horses need wind protection, the Appellant testified that the living space for the horses stimulated their natural movement and behaviour. She testified that the cover-all on the Property provides excellent protection from the rain and snow and allows the horses to eat dry hay. Furthermore, there was a 40-feet-wide garage that protected the horses from the north and west winter winds, as well as other wind barriers within 50 feet of the cover-all.
35The Appellant testified that when the first frost arrived, she would separate the horses under the cover-all according to the dominant and submissive behaviours of the animals. She testified that she had roped off certain areas to ensure the horses were contained, but these ropes would often be moved around to allow additional access to the Property.
36The Appellant entered into evidence photos of her Property and the four horses in question accessing the various structures, both man-made and natural, including the huge cover-all, several outdoor buildings and garages, and expansive forest that could also act as a wind barrier to protect the horses from the elements.
Analysis
37For the reasons that follow, I find that the horses were in distress due to their poor body conditions, which could be caused by a lack of dental care and the need for pain medication for Cara. However, I see no basis for finding that more shelter is required for the horses. Dr. Halbert’s testimony was crucial in this regard, because as an expert in equine species, he confirmed that the last requirement of the Replacement Order was not necessary to relieve the animals’ distress.
38Dr. Halbert’s veterinary reports and testimony demonstrated that the four geriatric horses were generally in good care and had good living conditions. For example, the aged horses were separated and fed differently than the younger horses. Dr. Halbert stated that there were elements of sufficient nutrition, care and shelter provided by the Appellant, who undoubtedly cares for her animals very much.
39The Appellant explained that she had implemented a feeding plan with additional supplements following the inspections, and this was supported by the inspectors' statements. However, this did not address the oral health of the animals or take into account Dr. Halbert’s evidence that dental irregularities could hinder the proper absorption of nutrients, especially in geriatric horses.
40Dr. Halbert testified that if the horses experience oral discomfort when chewing, they would not be able to receive the benefit of extra nutrition, therefore the horses’ nutrition and oral care go hand in hand and additional feed or supplements would not suffice. The Appellant did not acknowledge the veterinarian’s concerns regarding dental work, nor did she indicate any intention to rectify this.
41Concerning the other recommendations made by the veterinarian, the Appellant objected to his findings and stated that she favoured naturopathic medicine rather than providing pain medication. The Appellant argued that pain protects the horses, and the side effects of pain medication would be detrimental to her horses. While I recognize the Appellant’s concerns about giving her horses unnecessary medication, I must give limited weight to the Appellant’s position in this regard as she was not qualified as an expert on horses or naturopathic medicine.
42Furthermore, during re-examination, Dr. Halbert clarified that while long-term use of pain medication could lead to side effects, he was proposing short-term use to see if the medication would have a beneficial impact on Cara’s limping and improve her mobility. The Appellant questioned Dr. Halbert about whether he noticed any visible improvement in Cara’s limping in January, but he was unable to confirm this. In fact, as mentioned above, during his follow-up assessment of the horses Dr. Halbert reported that the lameness in Cara’s leg remained the same.
43It is clear from the materials filed by the Respondent and the testimony of the veterinarian and inspectors that the horses met the definition of distress as set out in the Act and could benefit from oral examinations, as well as pain medication for Cara.
44Regarding the issue of wind protection, the Appellant stated that the horses had sufficient shelter on her Property as there were several buildings that the horses could go close to or inside for wind protection. The Appellant relied on pictures of the Property to show various buildings and areas for wind protection, including a large spruce tree and two garages.
45The Respondent argued that there were minimal areas which provided both overhead coverage and wind protection. Dr. Halbert expressed concerns that with dominant-submissive behaviours, some animals might be pushed aside and so it was unclear whether they would all fit under the cover-all. Instead, a four-sided enclosed stall would be preferable. However, during cross-examination of Inspector Falls it became clear that the inspectors were not aware of all the other areas on the Property the horses had access to, which Ms. Somers testified about.
46I accept Ms. Somers’ testimony that she would often move the ropes to allow the horses to move to different parts of her Property, including the large cover-all, garages, and even the forest. The pictures clearly showed a vast Property with various areas for shelter, including constructed shelter and expansive natural forestry all around.
47I find the Appellant’s evidence was credible with regards to having a plan in place for the winter. It was evident from her testimony that Ms. Somers cared dearly for her horses and had a great deal of experience raising them. She had clearly turned her mind to the positioning of the horses under the cover-all based on their dominant and submissive behaviours. Dr. Halbert’s testimony focused on possible shelter issues for a subordinate horse. However, if a subordinate horse cannot gain access to the covered structures, it could still seek shelter beside the other outdoor structures or in the trees, which could all act as windbreaks and provide shelter from the elements.
48Furthermore, the Respondent failed to provide specific evidence of any particular horse being unable to find shelter on the Property, either constructed or natural shelter in the surrounding forest. The testimony of Inspector Falls that the horses appeared cold in October is speculative of possible distress, especially considering that the animals can move around and the Appellant had a plan to reposition the geriatric horses to certain areas of the Property during the colder winter months.
49Based on this evidence, I find that there was adequate shelter for the horses on the Property and the horses were not in distress on this basis.
50However, the horses were in distress in terms of needing dental care and further assessment of Cara’s left leg limp. Therefore, the requirements in the Replacement Order to have a full oral assessment by a veterinary dentist for all four horses, as well as providing pain medication to Cara to alleviate left forelimb lameness, still stand.
Issue 2: Should the Replacement Order be confirmed, revoked, or modified?
51Based on my findings above, I modify the Replacement Order by removing the requirement for additional wind protection for the four geriatric horses. However, the requirement to provide a full oral assessment by a veterinary dentist and pain medication to Cara to alleviate left forelimb lameness still stands.
52The evidence and photographs provided by the Appellant showed that her Property is well-equipped to ensure the welfare of the horses. The photographic evidence reveals a spacious paddock surrounded by trees, which can provide natural protection for the horses. In addition, there were various large man-made structures to provide additional shelter. This evidence collectively demonstrates that, in addition to the natural forest areas the horses can access, there are ample resources on the Property to safeguard their well-being. Notably, Dr. Halbert also emphasized that the shelters he observed were not “inadequate”, only sub-optimal.
53I find that there was sufficient shelter on the Property to protect the geriatric horses from the elements, therefore the requirement in the Replacement Order to provide additional wind protection should be modified accordingly.
ORDER
54Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, the Board:
a. Allows the appeal of the Replacement Order in part. b. Modifies the Replacement Order to remove the requirement that the Appellant must provide additional wind protection for the four horses to alleviate further weather-related stress.
Released: March 26, 2024
Ziba Heydarian, Vice Chair