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:
Julie Nicholls
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator: Raymond Ramdayal, Member
Appearances:
For the Appellant: Jennifer Friedman, Counsel
For the Respondent: Joanna Chan, Counsel
Court Reporter: Barbara Pollard, Pollard Verbatim
Heard by videoconference: February 6 and 7, 2024
REASONS FOR DECISION AND ORDER
OVERVIEW
1Julie Nicholls, the appellant, is the owner of 15 equids (horses) of various ages, sexes, species and colours.
2On November 22, 2023, Animal Welfare Services (AWS) received a call from central dispatch due to a concern about equids experiencing unsafe living conditions, poor body conditions, lameness, and inadequate food and water. These animals were previously subject to removal in 2022. A follow-up on a consent order remains in effect for a mare named Rebel who gave birth while in Chief Animal Welfare Inspector’s (CAWI’s) care. The order required Rebel to be seen by a veterinarian and the compliance date was November 20, 2023. On December 5, 2023, it was determined that there was still a lack of appropriate shelter and resting area for the mare and other equids.
ISSUES
3The issues in dispute in this matter are:
Were the 15 equids in distress at the time of their removal? If so, was it necessary for AWS to remove the 15 equids to alleviate their distress?
Should the 15 equids that were removed from the Property and subject to the Keep in Care decisions be returned to the appellant?
Should the SOA issued on January 5, 2024 in the amount of $18,616.31 be confirmed, revoked or varied?
RESULT
4For the reasons that follow:
i. I find that the AWS inspectors had reasonable grounds to believe that the equids were in distress. I am also satisfied that the issuing inspector was acting within her authority to remove the animals. Therefore, the Board confirms the Notice of Removal dated December 20, 2023.
ii. I find that the Keep in Care Decisions dated January 4 and January 12, 2024 were reasonable in order to ensure the animals would not be returned to an environment of distress.
iii. I find that the SOA issued on January 5, 2024 contains costs which are reasonable for the care of the equids while in the care of AWS. I confirm the SOA, but reduce it to $17,768.81 on account of reducing the trailer layover costs.
APPELLANT’S HISTORY WITH AWS
5In November 2022, the same 15 equids who are the subject of these appeals were removed from the care of the appellant. The reasons for the prior removal were similar to the reasons they were removed this recent time. The equids did not have adequate and appropriate shelter, adequate bedding, or protection from the elements and harmful temperatures. Most importantly, the same serious issue was present that the equids did not have consistent access to water and food.
6I note that the animals were returned to the appellant in March and April of 2023 suggesting that these issues were resolved at that time. However, this new set of appeals deals with the same issues.
7As a result of the 2022 removal, the appellant entered into a settlement agreement with the CAWI which would ensure that the animals were not returned to the same facility to avoid them being returned to a place that would cause them distress. One condition of the settlement agreement was that the appellant not relocate the 15 equids to another facility without prior approval from AWS. However, on December 5, 2023, AWS discovered that the appellant relocated the 15 equids to another facility without access to readily available water, feed and adequate or appropriate resting areas, once again subjecting them to distress.
8Pursuant to a Notice of Removal dated December 20, 2023, AWS removed the 15 equids from the appellant’s care. The animals were seized from a property in Burk’s Falls, Ontario (the “Property”).
9The removal occurred following non-compliance with a Compliance Order issued on December 5, 2023, and based on a veterinarian certificate advising that removal of the animals was required to relieve the animals’ distress. AWS argued that the animals’ living conditions contravened Ontario Regulation 444/19: Standards of Care and Administrative Requirements under the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the “Act”) and the National Farm Animal Care Council’s Code of Practice for the care and Handling of Equines (“NFACC Code”).
10The appellant appealed the December 20, 2023 Notice of Removal to the Animal Care Review Board (the “Board”) on December 23, 2023.
11On January 4, 2024, a Notice of Decision to Keep Animal(s) in the Chief Animal Welfare Inspector’s Care (Keep in Care Decision) was issued for the 15 equids. The appellant appealed this decision to the Board on January 8, 2024.
12On January 5, 2024, a Statement of Account (SOA) was issued to the appellant in the amount of $18,616.31 for the care of the 15 equids. It is specifically related to the transportation costs ($8,167.23), boarding costs ($9,225.00), and veterinary costs ($1,224.00). The appellant also appealed the SOA to the Board on January 8, 2024.
13On January 12, 2024, a further Keep in Care Decision was issued for the 15 equids since the prior issues were not rectified. The appellant appealed this decision on January 14, 2024.
14To summarize, the Board must now make a decision on all four appeals listed below:
Notice of Removal, issued by AWS, dated December 20, 2023;
Keep in Care Decision, issued by AWS, dated January 4, 2024;
SOA, issued by AWS, dated January 5, 2024; and
Keep in Care Decision, issued by AWS, dated January 12, 2024.
15The appeals proceeded by way of a virtual hearing on February 6 and 7, 2024, and closing submissions were provided in writing by the respondent on February 9, 2024 and by the appellant on February 12, 2024.
PRELIMINARY MATTERS
Court Reporter
16The appellant originally wished to audio record the hearing but could not do so because it was cost prohibitive. At the start of the hearing, the respondent advised that they were willing to pay for a court reporter and had one on standby. The respondent acknowledged that their request was late and not filed in accordance with Rule 13.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (Rules).
17The Rule requires a request for a court reporter to be made in writing to the Board at least 10 days prior to the hearing. The request must also be copied to the other party. The appellant had no objection to the late filing for request for a court reporter. In fact, they appreciated the gesture on the part of the respondent to provide a court reporter.
Confidentiality Order
18During the hearing, personal health information was referenced by the appellant. As a result, the appellant’s lawyer advised that she would be seeking a confidentiality order to protect personal health and sensitive information in the documentary materials as well as the oral evidence/transcript.
19After the hearing, the appellant contacted the Board seeking a confidentiality order to protect personal health and sensitive information in the documentary materials and oral evidence/transcript.
20On February 20, 2024, the Board requested written submissions from the parties on the request for a confidentiality order.
21The Board’s decision on the request for a confidentiality order is included as part of this decision below.
PARTIES’ SUBMISSIONS ON THE REQUEST FOR A CONFIDENTIALITY ORDER
22The appellant’s lawyer submitted that it had concerns about disclosure of the appellant’s personal information and personal health information during the hearing and requested a confidentiality order on that basis.
The Tribunal Adjudicative Records Act, 2019, S.O. 2019, c. 7, Sched. 60 (TARA) provides that adjudicative records are to be made available to the public. However, TARA also authorizes the Board to make an order treating all or part of an adjudicative record as confidential, preventing it from being disclosed to the public. The Board may make such a confidentiality order if it determines that intimate financial or personal matters contained in the adjudicative record are of such a nature that the public interest outweighs the desirability of making the record available to the public.
23The appellant’s lawyer submits that the adjudicative records regarding her client are of such a nature that the interest of the appellant served by avoiding disclosure outweighs the desirability of adhering to the principle that the record would be available to the public.
24The appellant further submits that a confidentiality order with respect to all decisions about this matter including the corresponding transcripts would not result in prejudice to the respondent or the public. She further submitted that there would be irreparable prejudice to the appellant to decline to impose a confidentiality order for the present appeals.
25The respondent submitted that they did not oppose the appellant’s request for a confidentiality order. However, they asked the appellant to clarify the nature of the confidentiality order being sought. If the appellant is pursuing a partial sealing order, she should specify the information she wishes to be redacted from the documents.
26I did not receive any response from the appellant on the respondent’s further inquiry.
ORDER REGARDING CONFIDENTIALITY
27In considering a confidentiality order, the Board is obligated to ensure it applies the least restrictive means to maintain transparency and public trust.
28In this case, the appellant has a non-evident disability. There was no request for accommodation made by the appellant to the Board prior to the hearing. However, I find that the request for a confidentiality order is reasonable and warranted since it involves the appellant’s personal health information. Furthermore, the respondent did not have any objection to the confidentiality order so I find that they will not be prejudiced by the issuance of a confidentiality order.
29Public access to adjudicative records is protected by s. 2(b) of the Charter of Rights and Freedoms, and restrictions on access are exceptional. When considering whether to override the constitutional principle that adjudicative records be publicly available, the Board must apply the test set out by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25. The Court held that a person seeking to limit the open court presumption must establish that:
(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
30In Sherman Estate the Court recognized that privacy can be an important public interest under the discretionary test where it can be demonstrated that protection of human dignity is at risk. Where one’s dignity is impaired, the impact on a person is no longer theoretical, but can have real consequences on psychological or physical well-being. The justice system suffers when its processes inflict harm such as this, and thus steps must be taken to avoid it: Sherman Estate at para. 72
31Dignity may be undermined where the information reveals something sensitive about the person as an individual, as opposed to generic information that reveals little about who they are as a person. The information sought to be protected must be sufficiently sensitive that it strikes at one’s “biographical core”—it must consist of intimate and personal details about the person, their lifestyle or their experiences. The Court in Sherman highlighted some examples of information that have been recognized by courts in the past as being sufficiently sensitive, including information about stigmatized work, sexual orientation and subjection to sexual assault or harassment. It also agreed that detailed information about family structure and work history could, in certain cases, constitute sensitive information that requires protection: Sherman Estate at paras. 35, 75-79
32The Court also noted that it will never be sufficient to raise a recognized interest on its own. The person seeking to limit the open court principle must also demonstrate a serious risk to that interest. Moreover, the threshold is high and context-specific—in order to preserve the integrity of the open court principle the public interest in dignity will only be found to be seriously at risk in exceptional cases. Disadvantage, embarrassment, or distress caused by openness will typically be insufficient on their own to interfere with the openness of proceedings: Sherman Estate at paras. 56, 62-63, 79, 84.
33Where information is found to be sufficiently sensitive to strike at one’s “biographical core”, a court must then ask whether a serious risk to the interest is made out in the specific context of that case. In determining this, the court may consider, among other factors: (1) the extent to which the information would be disseminated without a confidentiality order, including a recognition that we live in an electronic age in which information may be easily disseminated; (2) the extent to which the information is already publicly available; and (3) a consideration of both the gravity of the feared harm and its probability of occurring, based on the totality of the circumstances: Sherman Estate at paras. 79-84.
34In applying the Sherman Estate test, I find first that public access to the records containing the appellant’s personal health information poses a serious risk to an important public interest: the public interest in protecting personal privacy where dignity is at risk. I find that the appellant’s dignity would be compromised if her personal health information is made public. Second, the order sought is necessary to present this risk. I see no reasonably alternative measures that will prevent this risk. Third, I find that the benefits of this order outweigh its negative effects, especially in light of the lack of prejudice to the parties.
35Based on the submissions by the parties I hereby order:
iv. All documents or records filed with the Board in this proceeding which contains the appellant’s personal health information be sealed and restricted from access to the public.
v. All documents filed with the Board containing personal health information pertaining to the appellant be clearly marked as confidential.
vi. No person shall publish or make public information that has the effect of identifying or revealing the appellant’s personal health information related to this proceeding.
vii. This Order shall be noted in the Board's physical and electronic filing system.
Late Evidence
36The appellant submitted late evidence on the first day of the hearing related to how the property where the animals resided has changed after the Removal and Keep in Care decisions. This new evidence was not available to AWS when their orders were issued.
37The respondent holds the position that the issue of returning the animals to the owner/custodian is not properly before the Board because an application under section 38(4) of the Act has not been filed. This section states that if an animal has been kept or taken into the CAWI’s care, the owner/custodian 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 the Chief Animal Welfare Inspector’s care have ceased to exist.”
38While I agree that an application under section 38(4) has not been filed, I may still consider this issue in the context of whether the AWS’ decisions to remove and keep in care were valid when issued. In the event that they were not, the Board will have jurisdiction to order that the animals be returned. Therefore, I placed weight on the evidence in this context and not to independently determine if the animals should be returned to the owner if the decision to remove and keep in care are valid and justified.
39Based on the submissions by the parties, I decided to allow the late evidence, but advised that I would only consider the evidence as probative of the validity of the Removal Order and the Decision to Keep.
EVIDENCE AND ANALYSIS
i. Were the 15 equids in distress at the time of their removal? If so, was it necessary for AWS to remove the 15 equids to alleviate their distress?
40The 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 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.
41Furthermore, s. 30(1) of the 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.
42In addition, s. 38(9)1. of the Act states:
(9) After a hearing, the Board may do one or more of the following:
- Confirm, revoke or modify an order made under section 30.
43The appellant’s grounds of appeal are that the removal of the 15 equids pursuant to the Notice of Removal was unreasonable and was not conducted in accordance with the Act. The appellant also argues that the Keep in Care Decision was not issued in accordance with the Act and that the equids were not in distress at the time of removal. They further claim that the equids will not be in distress if returned.
44The appellant further states that more time should have been given to address the outstanding issues before removing the animals. The appellant testified that the animals were in good living conditions and that their removal was premature. She argued that animals should only be removed from their home as a last resort.
45Observations made during the December 5, 2023 inspection were documented in the affidavit of Inspector Amika Gauthier. This inspection resulted in the issuance of a compliance order. Inspector Gauthier testified that the electric fence surrounding the perimeter was off. One equid named Moonshine was loose on December 5 and 20. She also provided general recollection of her observations that day and her familiarity with the body scoring system for equines.
46The appellant cross-examined Inspector Gauthier, which led to the inspector confirming that removal of the animals from their owner is a last resort. She also provided insight into how much an average horse consumes per day. She also agreed that the farm conditions are dynamic and can change from one minute to the next. Despite all of this, the respondent still found that the animals were a state of distress and action needed to be taken.
47I accept this position from AWS and find Inspector Gauthier’s testimony to be an accurate reflection of what transpired on the day of her visit.
48In addition to this, Inspector Gauthier testified that there was no adequate or appropriate shelter, no appropriate fencing for the horses, no consistent supply of unfrozen water, only one bale of hay in the round pen, and insufficient bedding material on the ground. The inspector testified that she was advised by the appellant that there were 12 stalls available on the Property for the animals to utilize. However, based on her inspection, they were too small to allow for an equid to lay down in normal resting positions.
49In considering whether the animals were in distress, I received evidence regarding ongoing medical care needed to alleviate their distress. One equid required a dental procedure. Others were found to carry a heavy parasite burden, which requires follow up medical care with a veterinarian.
50The respondent also called two licenced veterinarians as witnesses to provide testimony and support the findings of the AWS inspection.
51A follow up inspection on December 20, 2023 revealed that while some of the issues were addressed, for example bales of hay were added, the majority of deficiencies still existed.
52The appellant argued that the follow up compliance inspection was scheduled for December 12th, 2023. The appellant stated she was agreeable to that date, however inspector Gauthier cancelled the inspection. The appellant stated that while she made efforts to reschedule the inspection appointment with inspector Gauthier, she received no response to her many emails and text messages.
53The appellant’s lawyer made reference to her client’s disability citing a number of conditions which she has suffered from over the years. These conditions become exacerbated at certain times.
54The appellant testified that after being unresponsive to her inquiries for a week, AWS opted for an unannounced inspection with two inspectors, two major case investigators, a veterinarian, and the Ontario Provincial Police. AWS also had three trailers waiting on standby equipped to fit all 15 of the appellant’s horses for transportation away from the Property. This overwhelming response contributed to the appellant’s medical condition on that date.
55The appellant argued that a planned inspection would have yielded a very different result and the unannounced inspections by AWS led to an overwhelming sense of anxiety due to her medical condition.
56It is also the appellant’s position that when AWS arrived on the morning of December 20, 2023, she was in the middle of performing her morning chores for the farm. This includes turning out or feeding horses, ensuring the availability of water, providing grain, performing fence checks, and horse and paddock inspections, mucking stalls, and picking up supplies such as grains and shavings from town. It is the appellant’s claim that the unexpected visit by AWS prevented her from completing her chores. The AWS inspector denied stopping the appellant from doing her chores.
57It raises the question on whether deficiencies could be corrected by the appellant during the course of an inspection by AWS. I find that while some deficiencies may be easily corrected during an inspection, permitting this does not excuse non-compliance and does not satisfactorily address the underlying issue. Allowing the appellant to simply correct a deficiency during an inspection may not instill the seriousness of ensuring that the health, safety and welfare of the animals is protected at all times and encouraging proactive measures to be taken to ensure the animals are not placed in jeopardy. This would mean more frequent checks on the part of the appellant should be conducted to ensure they remain in compliance at all times. For example, the appellant must ensure the equids have access to water even before the water runs out or becomes frozen.
58The appellant referred to the term of a farm being a “living Property” on a number of occasions during the hearing. For example she stated “its appearance at one moment may be vastly different to another moment.” This suggested that the Property is generally in a state of flux.
59The appellant called two witnesses who provided insight into how the farm is run and shared their knowledge and experience of working with equids. One witness described the daily amount of water typically needed for each individual horse. She also spoke positively about the appellant’s farming practices and overall care of the animals.
60The other witness was instrumental in assisting the appellant with rectifying the existing stalls to satisfy AWS’ requirements and follow industry standards.
61That said, I am not convinced that the deficiencies identified in the inspection in early December 2023 were rectified to the extent required to deem the animals not to be in distress. If anything, the initial visit from AWS should have alerted the appellant to take greater care to ensure that serious deficiencies such as a lack of water and appropriate bedding should always be compliant. Furthermore, a higher level of attention was required to ensure the animals were not in distress.
62The results of the follow up inspection revealed that the animals would have been in distress for some period of time overnight and perhaps even longer between the first inspection on or around December 5, 2024 and December 20th, 2023.
63I do note that testimony from both parties confirms that some equids were in better condition than others. Body scores are only one indicator of distress. It is the appellant’s view that removal of her animals ought to have been a last resort by AWS. The appellant stated this is also supported in other rulings from the Board. She believes that the CAWI did not give consideration to this on the day of the removal.
64Along with the Act, the Board also relies on the NFACC Code in reaching this determination. Though not binding, the NFACC Code is published by the Canadian Agri-Food Research Council, sets out standards of care for equines based on reasonable and generally accepted practices of agricultural animal care, management and husbandry.
65Section 2.2.1 of the NFACC Code sets out requirements for box stalls which are used to house mares and foals up to two months of age. The NFACC Code states that they should be at least 30% larger than the average box stall.
66Section 2.3.2 of the NFACC Code requires that for indoor facilities each horse must have enough space to lie down in a normal resting posture, stand with the head fully raised, walk forward and turn around with ease. For tie stalls, the NFACC Code provides a calculation to measure the appropriate size of a stall equating to each horse having enough space that they can stand fully raised and step forward in comfort.
67Calculations conducted by AWS revealed that some stalls were too small to meet the minimum requirements of the NFACC Code. The appellant did make attempts to remediate the size of the stalls to bring them up to code, including obtaining the assistance of a long-time friend and horse handler. However, the adjustments to the stalls were not done to the satisfaction of the CAWI.
68At the hearing, the appellant spent time discussing improvements which have been made to the facility since the removal. As previously mentioned, this new information is of limited value in my determination of whether the animals were in distress at the time of removal. However, the new information may be applicable to the appellant’s efforts to get her animals back once AWS is satisfied that they would be returned to a facility which would not cause distress.
69In conclusion, I find that the Notice of Removal made under s. 31(1)(a) and 31(1)(c) of the Act should be confirmed, pursuant to s. 38(9)1 of the Act, for the reasons noted above, as the appellant did not meet their onus of showing that the animals were not in distress and that removing them was unreasonable.
ii. Should the 15 equids that were removed from the Property and subject to the Keep in Care decision be returned to the appellant?
70The appellant must prove on a balance of probabilities that the animals can be returned to them without being placed back in distress.
71These animals were subsequently removed to alleviate their distress. I find that these orders were necessary at the time and properly executed. There is nothing to indicate that the removal was done unreasonably or in a manner that is contradictory to the Act. I find that the removal was conducted in the spirit in which the Act is written, to protect the health and welfare of animals.
72The appellant may at any time request that the animals be returned to her care. However, the Board finds that the animals were properly removed and not subject to be returned on the basis that the Orders were not properly issued. I also note that there is no time limit on the appellant appealing the return of her animals under section 38(4) of the Act which states:
An owner or custodian of an animal that has been kept in or taken into the Chief Animal Welfare Inspector’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 the Chief Animal Welfare Inspector’s care have ceased to exist.
73The appellant stated at the hearing that since the removal of her animals, she has made efforts to secure their return from AWS. She has provided photographs, diagrams, and other information which she hopes will demonstrate the considerable effort she has taken to satisfy the requirements of AWS. The appellant is concerned that despite its public interest mandate and its obligation to accommodate her, AWS has so far refused to re-attend the Property thereby increasing the costs to the appellant and taxpayers and further exacerbating her symptoms as related to her medical condition.
iii. Should the SOA issued on January 5, 2024 in the amount of $18,616.31 be confirmed, revoked, or varied?
74The appellant appeals on the grounds that the SOA was not reasonable and was not issued in accordance with the Act. Moreover, the appellant believes that the costs contained in the SOA are excessive and unsupported. While AWS has an initial evidentiary burden to prove that the charges reflected in the SOA reflect the actual costs of necessaries provided to the animals and that the care was reasonable, once this is met the onus shifts to the appellant to show that the accounts should be varied or revoked.
75It is the appellant’s position that AWS should be reasonable in its spending as it relates to boarding fees. It is also the appellant’s position that the transportation costs are too high.
76To support their position on boarding fees, the appellant referred to two boarding agreements from other facilities. It was noted that one such boarding facility had gone out of business. However, I do note that AWS’ fees are higher than the fees from the other boarding facility. I agree that AWS should be diligent in seeking out reasonably priced places of boarding. However, the appellant was not able to confirm that the lesser-priced boarding facility would have had the capacity and ability to house 15 equids. As such, a specific, comparable, and convincing quote was not provided that would allow me to vary the SOA at this time.
77In their written closing submissions, the respondent advised that they were prepared to consent to reducing the SOA by removing the trailer layover costs in the amount of $750.00 + tax. Therefore, the SOA’s revised total is now $17,768.81.
ORDER
78I find that the 15 equids were in distress at the time of their removal. I also find it was necessary for AWS to remove the 15 equids to relieve them of their distress. I therefore confirm the Notice of Removal issued by AWS dated December 20, 2023.
79I further find that the Keep in Care decisions which the 15 equids are subject to are reasonable to ensure the animals are not returned to an environment of distress.
80I further reduce the SOA on consent to the revised amount of $17,768.81, which excludes the trailer layover costs.
Released: April 12, 2024
_________________________
Raymond Ramdayal, Member