Chelsey Flanders and Parker (Lexa) Mogck v. Chief Animal Welfare Inspector, 2024 CanLII 88298

Date: 2024-09-19

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

Between:

Chelsey Flanders and Parker (Lexa) Mogck

Appellants

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Panel: Peter Simmons, Member Paul Stopciati, Member

Appearances: For the Appellants: Parker (Lexa) Mogck and Chelsey Flanders, Self-represented For the Respondent: Carly Atrooshi, Regional Supervisor, Animal Welfare Services (AWS); Danielle Meuleman, Counsel

Heard By Videoconference: July 15, 17, 18 and 22, 2024

OVERVIEW

1Chelsey Flanders and Lexa Mogck, the Appellants, are the owners of five dogs, 12 cats and one horse.

2On June 21, 2024, Animal Welfare Services (AWS) issued two Decisions of the Chief Animal Welfare Inspector (CAWI) (Respondent) to Keep an Animal(s) in the CAWI’s Care (Keep in Care decisions) because there were probable grounds that the animals would be placed in distress if returned to the Appellants. One Keep in Care decision involved the five dogs and one of the 12 cats, and the other Keep in Care decision involved the horse.¹

3On June 23, 2024, the Appellants appealed the Keep in Care decisions to the Animal Care Review Board (Board). On June 24, 2024, they filed applications seeking the return of the five dogs, the cat, and the horse. The matters were heard together pursuant to s. 9.1 of the of the Statutory Powers Procedures Act, R.S.O. 1990, c.S.22.

ISSUES IN DISPUTE

4The issues in dispute are:

1. Did the Respondent have reasonable grounds to believe that the five dogs and the cat may be placed in distress if returned to the Appellants, at the time the Keep in Care decision was made?
2. Have the conditions that caused the five dogs and the cat to be kept in care ceased to exist, such that those animals should be returned to the Appellants?
3. Did the Respondent have reasonable grounds to believe that the horse may be placed in distress if returned to the Appellants, at the time the Keep in Care decision was made?
4. Have the conditions that caused the horse to be kept in care ceased to exist, such that the horse should be returned to the Appellants?

RESULT

7For the reasons that follow, we:

1. Dismiss the appeal of the Keep in Care decision for the five dogs and the cat (ACRB File 16011);
2. Dismiss the appeal of the Keep in Care decision for the horse (ACRB File 16012);
3. Dismiss the application for return of the five dogs and the cat (ACRB File 16025); and
4. Dismiss the application for the return of the horse (ACRB File 16026).

PRELIMINARY MATTERS

8Both parties brought motions prior to the hearing regarding evidentiary issues. The Board addressed the motions at the start of the hearing and made the following rulings. Motions that were not contested are not included or form part of this decision:

Appellants’ motions to strike evidence

9The Appellants argued that the following evidence should be excluded from the hearing record:

1. A 2023 Landlord and Tenant Board (LTB) decision related to the Appellants;
2. A Windsor Police Service (WPS) Auxiliary report prepared around the time that the five dogs and 12 cats were removed from the Appellants' rented moving truck;
3. Radiographs filed as evidence by the Respondent after the disclosure deadline had passed;
4. Documents from an out-of-province veterinarian containing an issues list concerning one of the Appellants' dogs, Ashoka.

10After examining the documents and considering the parties’ submissions, we ruled that:

1. The motions to exclude the 2023 LTB decision and WPS report are denied. The Appellants argued that the LTB Order and WPS report are supporting documents to the removals, which are not under appeal. We are persuaded by the Respondent’s argument, however that they are relevant background that informed the Keep in Care decisions.
2. The motion to exclude radiograph evidence is granted. The Respondent submitted that their evidence was made available at the first available opportunity. We accept the Appellants’ argument that they did not have time to have an independent review of the evidence because the documents were not provided by the prescribed date as ordered by the Board in its case conference. In accordance with Board Rule 9.4 a party may not rely on a document where the party has failed to comply with the Rules, directions, or orders with respect to disclosure.
3. The Appellants’ motion to exclude their evidence from July 17, 2024, is granted. The Appellants argued that they cannot verify the authenticity of certain documents provided to them that is included in their Evidence Brief. The Respondent requested that Appellants’ testimony concerning this motion any related corresponding emails be allowed as evidence in the hearing. The Appellants consented.

Appellants’ motions to remove Respondent witnesses

11The Appellants argued that AWS Senior Investigator Ryan Sparks (SI Sparks) will perjure himself at the hearing, and that Dr. Ian Welch has a conflict of interest, and neither should be allowed as witnesses.

1. Both motions are denied. The Appellants did not satisfy the requirements of Board Rule 15.1(c), which says, that a party bringing a motion shall deliver a Notice of Motion setting out the evidence in support of the motion.

12We note that on Day 3 of the hearing, Chelsey Flanders did not attend. Later that day, she advised the Board by email that Lexa Mogck may act and speak on her behalf for the remainder of the hearing. Lexa Mogck agreed, and the Respondent consented to proceeding.

EVIDENCE AND ANALYSIS

13We must decide if the Keep in Care decisions were reasonable, and if the animals should be returned to the Appellants.

Issue 1: Did the Respondent have reasonable grounds to believe that the five dogs and the cat may be placed in distress if returned to the Appellants, at the time the Keep in Care decision was made?

14For the reasons that follow, we find the Respondent had reasonable grounds to believe the animals may be placed in distress if returned to the Appellants and to therefore keep the dogs and the cat in the Respondent’s care. In reaching this conclusion, we considered the circumstances around the removal of the animals in early June 2024, the poor health condition of the animals at the time of the removal that informed the Respondent’s position to keep them in care, the home condition they would be returned to, and the willingness and ability of the Appellants to provide veterinary care to the animals.

15We were not persuaded by the Appellants’ evidence that their knowledge of animal care is informed enough and credible to ensure that proper care would be provided to the animals if returned. Further, we find the testimony of Dr. Welch credible and persuasive that the animals should remain with AWS.

Conditions on removal

16On June 5, 2024, SI Sparks and Senior Investigator Jordan Yearly (SI Yearly) responded to a call concerning a U-Haul moving truck and trailer parked in an urban neighbourhood in Windsor, Ontario. Upon inspection, they discovered 12 cats and five dogs in the cargo section of the moving truck, and a horse in the trailer. The cargo portion of the truck, which is separated from the driving cab portion of the truck, had a temperature reading of 32C/90F degrees. They also observed no food for the dogs, a small amount of food for the cats, no water, a full litter box and visible urine stains and feces throughout the cargo bed. None of the animals were crated or secured.

17Based on the findings from the inspection, SI Sparks removed the five dogs and 12 cats from the moving truck citing critical distress.² AWS transported the animals to Lauzon Veterinary Hospital (LVH), where they were examined.

18On June 21, 2024, AWS Regional Supervisor Carly Atrooshi (RS Atrooshi) returned 11 of the 12 cats because they had no health issues and were no longer in distress. On the same day, she issued a Keep in Care decision for the remaining cat and the five dogs because there were probable grounds that they would be placed in distress if returned to the Appellants.³

The animals’ health conditions

19Dr. Welch testified for the Respondent. He was retained to provide an expert opinion on the health status of the dogs and the cat when they were removed on June 5, 2024, their current health status, and whether they should remain in the care of AWS. He also prepared an expert report based his review of the medical reports and information from LVH.

20Dr. Welch testified that the reports from LVH show that the dogs were ravenous when they were removed from the moving truck in early June 2024, and they had eaten nondigestible items such as hair, grass, and wood, which he said was indicative of an absence of food. He said they had low body condition scores adding that while there are different scoring charts used in the industry, no dog should have a score under the mid-point, which he found was the case with the five dogs.

21Dr. Welch testified that the LVH reports indicated that the dogs were also dehydrated when examined following their removal with some at 7% dehydration. In his report he stated that 10% dehydration is critically dangerous for a dog and that leaving animals in the back of a U-Haul moving truck without appropriate ventilation is “extremely dangerous and demonstrated a complete lack of understanding for the needs of cats and dogs and placed the animals’ health at risk for a fatal outcome.”

22In addition to their low body condition scores and dehydration, Dr. Welch testified that the weight of several dogs had declined since January 2024 when the dogs were examined at Branton Animal Hospital in Windsor. He also testified that each animal had additional health issues when they were examined at LVH including:

Animal Name	Specific health issue(s)
Dog #1 - Aayla	Giardia (intestinal protozoal infection).
Dog #2 - Ashoka	Emaciated. Significant weight loss since January 2024. Requires specialist assessment and ongoing care. Lameness, debilitating musculoskeletal condition.
Dog #3 - Chimera	Giardia.
Dog #4 - Hera	Alopecia, skin lesions, missing hair/fur, malassezia.
Dog #5 - Jyn	Behavioural issues. Lost weight since January 2024.
Cat - Rose	Muscle wasting, anemia, inflammatory bowel disease, intestinal neoplasia, lymphoma. Requires ongoing care.

23Dr. Welch also testified that the cat has a particularly challenging health situation involving anemia that will require ongoing veterinary care. Overall, he stated that he believes the best interests of the five dogs and cat is for them to remain in the care of AWS for the foreseeable future.

24The Respondent’s evidence concerning the health conditions of the animals was delivered principally through Dr. Welch and indicates that the animals were in distress when removed on June 5, 2024. They had unexplained weight loss, health issues including a skin condition, and anxiety, all of which preceded their removal and were known by the Appellants.

25We find Dr. Welch’s testimony on the health conditions of the animals used to support the Keep in Care decision to be credible. His testimony included explanations of his review of the detailed reports and records from LVH and his conclusion on the health conditions of the animals.

26When asked about the dogs’ weights, the Appellants disputed the records suggesting that the scales at the veterinarian offices were inaccurate and that there were clerical errors in the records. They argued that Hera, specifically, was at a healthy weight, and that Ashoka had gained weight since she was put on a raw food diet.

27The Appellants also testified that Ashoka’s weight loss is attributed to car travel and Jyn’s weight fluctuates constantly, which they said they have seen before. They added that they do not see the changes in weight as an issue and that they understand the lifestyle of the dogs extremely well.⁴

28The Appellants provided no evidence or records of their dogs’ weight comparisons to support their argument around the fluctuating weights, or inaccurate scale readings or clerical errors leaving us to conclude this was entirely their personal view.

29We find that the Appellants’ testimony on the conditions of the dogs and the cat is their opinion and informed by their personal assessment and review of guides such as the Canadian Kennel Club and VDH Breed Standards for German Shepherd Dogs that are generally used to outline ideal characteristics, temperament, and appearance of a breed. It is less reliable than the opinion of an expert veterinarian with 30+ years veterinary experience who had examined the medical reports from an independent veterinary hospital.

30The Appellants presented no cogent or credible challenge to Dr. Welch’s opinion on the condition of the animals. They asserted that Dr. Welch’s expert report “should be taken with a grain of salt,” but offered no explanation for why his opinions and conclusions were unfounded.

The home environment and veterinary care

31In addition to the health conditions of the animals, the Respondent said that the Keep in Care decision is informed from environmental and other factors such as the intended home for the animals and how they will be cared for if returned, which in this case they found to be suboptimal citing a small apartment, and unsubstantiated claims of expertise in animal care.

32SI Sparks testified that the Appellants had no fixed address or lease agreement when the animals were removed on June 5, 2024. He inspected their newly leased apartment on June 15, 2024, which he found to be small estimating it to be 200-300 sq. ft. He did observe several bags of animal kibble, cat litter, and 25 cans of animal wet food.

33SI Sparks said the Appellants indicated to him during the inspection that they might move again but that they provided no explanation as to why, or to where. When he pressed them for more detail about the possibility of a move, the Appellants told him they, ‘…had been through some stuff in the past few days and it (a move) might be a possibility.’ SI Sparks also testified that on June 18, 2024, the Appellants told him not to contact their landlord. In addition to the possibility of changing apartments, he said they indicated they may also change veterinarians.

34The Appellants’ testimony focused on the food for the dogs and the feeding plans for when the dogs and cat are returned.

35The Appellants testified that they had researched the nutritional benefits of raw food, arguing that it is better for a dog. They added that it assists with hydration, suggesting that it means a dog requires less water (from a bowl). In contrast to the dogs, they said the cats in their home are fed a dry food, or kibble, diet.

36The Appellants provided undated photographs of raw food in bowls that they said would be typical of what the dogs will eat when returned to them. They added that each dog is fed a raw food diet and receives one bowl per day, and that the dogs are fed different food because of their individual needs and ages. They provided undated images of supermarket receipts of raw food purchased on June 23, 2024, and undated “completion receipts” (proof of order) for supplements that would also form part of the dog’s diet.⁵

37The Appellants submitted that they have established a residence where they could live with the five dogs and the cats. They said they had not secured a residence prior to arriving in Windsor but provided proof of a signed lease of an apartment to the Respondent on June 18, 2024.

38The Appellants testified they can manage the animals' needs and that they are aware that some of the dogs have specific medical issues. They said Chelsea Flanders has veterinary training that would allow them to provide a certain level of care to the animals at their home and that they can transport the animals to their veterinarian using public transport if needed. Lexa Mogck also testified to having experience transporting animals, primarily livestock.

39The Respondent argued that Chelsea Flanders is not a veterinary technician nor licensed to provide animal care and no evidence of any expertise in animal care has been provided instead the Appellants are relying on unverified and unproven experiences in a veterinary office in Alberta. The Respondent also referenced the testimony of Dr. Welch, saying that several dogs and the cat will require regular veterinary care arguing that those veterinary demands are beyond the expertise and experience of the Appellants and imposes unnecessary risk to the animals.

40We find that that Appellants are overstating their knowledge and ability to provide appropriate and prescribed medical care to the animals. They did not provide any documentary evidence or certification of their experience or expertise with animal care or transport.

41We find further that the Appellants current living arrangements, which they currently share with 11 cats, will not safely or comfortably accommodate additional animals, specifically five medium-sized to large-sized dogs and one cat with significant health challenges otherwise supporting the Respondent’s position that the animals will be placed in distress if returned.

42RS Atrooshi testified that non-environmental factors, such as the Appellants non-compliance with past orders, their history with the AWS and level of cooperation with regards to their fulfilling the Standards of Care (Ontario Regulation 444/19 Standards of Care and Administrative Requirements (O.Reg.444/19, s.3)) requirements also informed the Keep in Care decision.

43RS Atrooshi emphasized in her testimony the importance of an owner’s compliance with AWS orders. She said the Appellants have not complied with a previous order concerning Hera from January 2024, which was confirmed by the Board following a hearing in April 2024.

44The Respondent also said the Appellants continue to deny AWS access to the animals’ veterinary records otherwise impeding AWS from verifying compliance. SI Sparks said he was told by the Appellants that they do not give consent to AWS to either speak to, or obtain medical records of their animals from their veterinarian. He also said the Appellants had indicated that they do not want AWS to enter their home out of a “concern for the safety of the animals, themselves and the AWS inspectors.”

45The Appellants acknowledged their previous experience with AWS adding that has been tense and at one point saying, “I(we) don’t trust AWS” but did not elaborate on the reasons for their sentiment.

46The Respondent argued that despite 11 cats being returned to the Appellants, they have not changed their attitude or position towards AWS. They will not provide AWS access to the veterinarian records, and the Appellants pattern of changing veterinarians is not ideal for the health of the animals.

47The Respondent also argued that the earlier motion from the Appellants to have veterinarian records from an Alberta veterinarian removed as evidence because they questioned the authenticity, is suspect. They argued the Appellants’ claim that the veterinarian records were falsified is untenable because they did not provide any evidence to prove the documents were false or provide a believable reason as to why the clinic would provide false records, and they made no effort to confirm the records despite opportunity and time to do so.

48When the Appellants were asked about the alleged false documents, they said they believed the documents that came from their veterinarian in Alberta were falsified and inaccurate. They provided no convincing argument or motive as to why this would be the case.

49We find the Appellants explanation behind the alleged falsified documents from an Alberta veterinarian lacks credibility and plausibility.

50We find further that the Appellants continued denial to AWS of medical records of their animals impedes AWS’s ability to confirm compliance with orders involving their animals and is a barrier to assurance that proper care is being provided.

Issue 2: Have the conditions that caused the five dogs and the cat to be kept in care ceased to exist, such that those animals should be returned to the Appellants?

51We find that while certain conditions that caused the animals to be kept in care have changed, others have not and for these reasons, we decline to order the return of the animals.

52The evidence suggests the Appellants had little or no regard for the welfare of the animals in their care; they only secured accommodations after arriving in Windsor and after the animals had been removed from the conditions they were being kept in, specifically, uncrated in a moving truck without proper ventilation, and without food or water. Moreover, the arrangements they ultimately made was for a small apartment of insufficient size to accommodate 12 cats and five dogs and themselves.

53The Respondent expressed few concerns when returning 11 cats to the Appellants otherwise showing their willingness to improve the relationship between them and the Appellants. The decision to return 11 cats however did not contemplate the return of five dogs and one more cat to an environment that is not only small but where the veterinary care that they require cannot be provided by the Appellants who are not suitably trained or experienced.

54The Appellants have not demonstrated that they properly or adequately plan for the well-being of the animals nor have the experience to provide the appropriate care when transporting them or tend to their medical issues.

55The Appellants are aware of their animals’ health conditions and have not complied with past AWS orders concerning health issues. They continue to deny AWS access to medical records that would confirm compliance for unknown reasons. This persistent and inflexible attitude provides little assurance that the animals will be properly cared for and prevented from distress if returned.

Issue 3: Did the Respondent have reasonable grounds to believe that the horse, Beauty, may be placed in distress if returned to the Appellants, at the time the Keep in Care decision was made?

60For contextual purposes, the horse was removed on June 6, 2024, because the Appellants had not complied with a June 5, 2024, order issued by AWS to provide the horse with adequate and appropriate feed, water, and exercise space. The NOR was appealed and withdrawn prior to the hearing. The Keep in Care decision was based principally on the fact that the Appellants had not arranged boarding for the horse, and she would be placed in distress if returned.

61For the reasons that follow, we find the Respondent had reasonable grounds to believe that the horse may be placed in distress if returned to the Appellants at the time of the Keep in Care decision.

Boarding arrangements

62The Appellants said they were in the process of finalizing a boarding arrangement with a local boarding facility (Serenity Stables) when they arrived in Windsor. They said they had not confirmed boarding prior to arriving and had alternatives available to them, including Chelsea Flanders’ father, who owns a farm in the county; however, they had not confirmed the use of the family farm for the horse.

63The Respondent said the Appellants would not provide details about the boarding facility when asked by AWS on June 5, 2025, adding that the Appellants did not appear to know the address of Serenity Stables.

64The Respondent’s evidence shows that the Appellants were asked for boarding information on June 13, 2024, and again on June 17, 2024, and none were provided to AWS. As of June 21, 2024, the date the Keep in Care decision was served, the Appellants had not provided any boarding details.

65SI Yearly contacted Serenity Stables on July 4, 2024, to inquire about arrangements for the horse. In emails to SI Yearly, the stable proprietor said they had no intentions of taking the Appellants’ horse for boarding, adding they do not want their business and that they had “blocked” any incoming email correspondence from them.

66The Respondent argued that the Keep in Care decision was entirely appropriate because the horse would have been placed in distress if returned because she had no home or confirmed boarding arrangements.

67We find the Appellants’ testimony on their efforts to secure boarding for the horse to be unreliable and contradicted by AWS' evidence. At no time was there an arrangement between the Appellants and Serenity Stables for the horse to board and no persuasive evidence was provided that any alternative arrangements had been made for the horse.

Issue 4: Have the conditions that caused the horse to be taken into care ceased to exist, such that the horse should be returned to the Appellants?

68We find that the conditions that caused the horse to be taken into care have continued, and we decline to order the return of the horse.

69The Respondent submitted that no boarding arrangements for the horse had been made prior to, or on the day of, the Keep in Care decision and this condition has not changed.

70The Appellants through their own admission confirmed they had not made verifiable boarding arrangements for to horse prior to their arrival in Windsor.

71We were not persuaded by the Appellants’ assertions that there was a commitment from Serenity Stables to board the horse. They provided no evidence that boarding arrangements have been made at any facility.

CONCLUSION

72In summary, the five dogs, the cat and the horse should not be returned to the Appellants. The evidence is clear that they will be placed in distress if returned as there no persuasive evidence to the contrary.

73The Appellants have not demonstrated that they consistently provide proper care to their animals. They have exhibited poor judgment in transporting them in unsafe and unsanitary conditions, and this conduct has continued over an extended period. Many of the animals had previously known health issues.

74The Appellants lack of basic planning for accommodations or boarding arrangements for any of their animals prior to their relocation placed them at unnecessary risk, again illustrating not only poor judgment, but a lack of awareness into animal well-being, security, and distress avoidance.

75The Appellants failure to comply with AWS orders and persistent refusal to provide them access to the animals’ health records continues to be an obstacle to verifying that they have the animals’ best interests in mind.

ORDER

76Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, 2019, we:

1. Dismiss the appeal of the Keep in Care decision for the five dogs and one cat;
2. Dismiss the appeal of the Keep in Care decision for the horse;
3. Decline to order the return of the five dogs and one cat;
4. Decline to order the return of the horse.

Released: September 19, 2024

______________________

Peter Simmons, Member

______________________

Paul Stopciati, Member

Footnotes

1. 1The 12 cats and five dogs were removed from the Appellants on June 5, 2024. The horse was removed on June 6, 2024. All were found to be in critical distress by AWS. Also, on June 21, 2024, AWS returned 11 of the 12 cats to the Appellants as they showed no signs of health issues and were no longer in distress.
2. 2AWS served a Notice of Removal (NOR) on the Appellants. The Appellants appealed the NOR to the Board on June 5, 2024. The appeal of that NOR (ACRB File # 15966) was withdrawn on July 10, 2024.
3. 3Pursuant to section 31(6)(a) of the Provincial Animal Welfare Services Act, 2019 (PAWS Act).
4. 4Exhibit 19 – Respondent’s Evidence Brief
5. 5Exhibit 13 – Appellants’ Evidence Brief.