Matt Peredery v. Chief Animal Welfare Inspector, 2024 ONACRB 90

Tribunals Ontario / Tribunaux décisionnels Ontario

Animal Care Review Board / Commission d’étude des soins aux animaux

Date: 2024-06-28

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

Between:

Matt Peredery Appellant

and

Chief Animal Welfare Inspector Respondent

DECISION AND ORDER

Adjudicator: Anxhela (Angela) Peco, Vice-Chair (Acting)

Appearances:

For the Appellant: Réjean Parisé, Counsel

For the Respondent: Jessica Holroyd, Counsel

Observers: Andrew Gawur; Mark Sraga and Tassia Poynter (January 23 only)

Heard by videoconference: January 23, February 7, 9, 14, 21, 22, 28 and March 5, 2024

Overview

1This hearing involves three appeals brought by Matt Peredery (the appellant), who is the owner of 193 animals that were removed from her farm in Northern Ontario. The animals include three horses, 10 cattle, 11 sheep, two emus, and 167 birds¹ of various species.

2On November 9, 2023, Animal Welfare Services (AWS) entered the appellant’s farm pursuant to a “Warrant (Animal in Distress)” and, following an inspection, issued a compliance order requiring the appellant to provide the animals with immediate access to species-specific food, water, bedding, and sanitary living conditions to relieve their distress (Order).

3On November 10, 2023, AWS returned to the property and, following another inspection, removed all 193 animals. Its decision to remove the animals was based on two grounds: a) the appellant’s non-compliance with the Order; and b) a veterinarian’s advice that removal was necessary to relieve the animals’ distress.

4In late November 2023, the appellant was served with a Statement of Account (SOA) requiring her to pay $45,063.32 in transportation, boarding, and veterinary costs stemming from the removal of the animals.

5The appellant appealed the Order, the decision to remove the animals, and the Statement of Account to the Animal Care Review Board (Board), and the matter proceeded to a videoconference hearing.

6At the time of the hearing, all surviving animals remained in the care of the Chief Animal Welfare Inspector (the respondent) pursuant to a Decision to Keep the Animals in Care, which was not appealed to the Board.

7During the hearing of these matters, the appellant denied that her animals were in distress and argued that the conditions observed on November 9 were the result of her being unable to complete her morning routine on the farm due to outside work commitments that ran late that day. She argued that she complied with the Order despite its lack of detail and the short timeframe for compliance, and that the animals should not have been removed on November 10. She characterized the removal as premature, lacking transparency, and unfair because it was based on the erroneous belief that she had abandoned her animals. She characterized the costs related to the removal as excessive and argued that she should not bear those costs since the removal was unwarranted.

8Although the appellant initially denied that any of the animals were in distress, toward the end of the hearing, she acknowledged that the birds were in distress, albeit not from a lack of care, and conceded the costs associated with their removal. Except for the birds, she sought the return of all other animals.

9The respondent sought to have the Order, the removal order, and the SOA confirmed. In the respondent’s view, the conditions on November 9 warranted an Order requiring the appellant to provide the animals with necessities. The appellant’s non-compliance with certain aspects of that Order, along with the animals’ overall distress, made it necessary for AWS to remove the animals on November 10 and incur costs to provide them with necessaries to relieve their distress.

10On the issue of remedy, the respondent argued that the animals should not be returned to the appellant and that ordering a return was not an available remedy even if the Board found that the removal was not done in accordance with the legislation. To support this position, the respondent noted that the appellant did not appeal the respondent’s decision to keep the animals in care, nor had she applied for the return of the animals under s. 38(4) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the PAWS Act).

ISSUES

11Should the Order dated November 9, 2023, be confirmed, revoked or modified?

12Were the animals in distress on November 10, 2023? If so, was it necessary to remove the animals to alleviate their distress?

13Should the animals be returned to the appellant?

14Should the SOA dated November 21, 2023 be confirmed, revoked, or varied?

RESULT

15For the reasons that follow, and pursuant to the powers set out in s. 38(9) of the PAWS Act, the Board:

1. Confirms the Compliance Order of November 9, 2023;
2. Finds that the animals were in distress on November 10, 2023, and it was necessary to remove the animals to relieve their distress;
3. Declines to make an order regarding the return of the animals; and
4. Varies the SOA from $45,063.32 to $43,684.44.

PRELIMINARY ISSUES

16The hearing of these matters started on January 23, 2024 and it quickly became apparent that there were several procedural issues that needed to be addressed.

17On consent of the parties, the hearing had been scheduled for one day. The time was grossly underestimated for the range of issues the parties intended to raise; the factual complexity of appeals that involved not only a large number of animals but animals of different species, each with their own standard of care requirements; the lengthy witness lists filed with the Board shortly before the hearing; and witness unavailability and disclosure issues. The hearing also began with two appellants, Matt Peredery and Adrian Cherniak, both of whom were named on the Order and the Notice of Removal. The SOA was issued only to Matt Peredery.

18The parties were invited to attend a hearing management conference after the first hearing day was adjourned to ensure that procedural matters were promptly addressed and that the hearing could move forward smoothly. An additional five hearing days were scheduled to accommodate the anticipated evidence.² Mr. Cherniak also withdrew as an appellant and the style of cause was accordingly amended to Peredery v Chief Animal Welfare Inspector.

EVIDENCE AND CREDIBILITY ASSESSMENTS

The appellant

19The appellant testified about the layout of her 60-acre property and the structures available on the farm. She described her farming experience and the day-to-day care she provided to the animals. With reference to various photographs of some of the animals that were removed from her property, she testified that many of them had been in her care in the months and years preceding the removal and that she was actively addressing any medical conditions they had.

20The appellant explained her involvement in the events of November 9 and 10, 2023 (the “November dates”), including the steps she took to comply with the Order. She said that she had been delayed in returning home from work and had not completed her chores by the time AWS attended her property on November 9, which is why some of the animals were confined to indoor spaces or did not have sufficient food or water available to them. She was not present during the inspection and arrived home later that afternoon after receiving notice of the Order. With the help of her tenant, Mr. Cherniak, she began addressing the requirements in the Order, including relocating certain animals or making changes to their shelters.

21The appellant’s evidence regarding each species of animals will be addressed in more detail later in these reasons but I will set out some brief findings on the credibility and reliability of the appellant in the paragraphs below.

22I found the appellant’s testimony to be internally inconsistent at times, which raised concerns about the overall reliability of her evidence. One example of such an inconsistency was the evolution of the appellant’s evidence on the care of her birds, which was a material issue in this hearing.

23Initially, the appellant acknowledged some health concerns with the birds, but generally considered them to be healthy and questioned why they were taken. She also testified that she had recently taken in sick birds and was nursing them back to health.

24In her examination in chief, the appellant was adamant that she had a strict routine for quarantining newly acquired or sick birds, treating them for parasites, and being careful not to physically handle them, to prevent spreading lice and cross contaminating the pens. The appellant was also highly critical of AWS inspectors’ actions when removing the birds, noting that birds that she had been careful about quarantining had been placed together during transport.

25In cross-examination, when asked why certain birds were loose in the communal ground area of the barns that were supposed to house quarantined birds in cages and where birds with visible symptoms of illness were found, the appellant stated that she uses the term “quarantine” loosely to include the concept that certain birds are confined to certain areas. When confronted with the inconsistency between the strict practices she described and what the inspectors observed on November 9, the appellant’s explanation that the term “quarantine” had multiple meanings for her was difficult to reconcile with her earlier testimony, where she described quarantining practices in the traditional sense of infection prevention and control measures. It also did not explain why the conditions on the ground were different from what she was describing her practices to be.

26In reply evidence, the appellant stated that it was a misjudgment to have introduced ill birds to her existing flock, and that she now understood the consequences of doing so without proper safeguards. This position, which the appellant only adopted after the respondent presented overwhelming evidence of the extent of illness in the flock, again struck me as inconsistent with her earlier testimony that she was extremely careful about protocols for introducing new birds to the flock precisely because she was aware of the consequences of improperly doing so. I also had difficulty accepting that the birds’ condition was the result of a temporary lapse in judgment because, as explained further below, there was evidence of a long-standing lack of care as it related to the birds. Overall, the appellant’s contradictory positions on a material issue in this hearing detracted from the overall reliability of her evidence.

The appellant’s witnesses

27The appellant called three witnesses: Adrian Cherniak, the tenant who was present when AWS arrived for the November 9 inspection; the appellant’s mother, Oksana Peredery; and the appellant’s neighbour, Sarah Rogers.

Adrian Cherniak

28Mr. Cherniak testified about the living arrangements at the home he shared with the appellant and his testimony was relevant to the issue of whether the appellant had effectively abandoned her animals in the lead up to the inspection. Mr. Cherniak stated that on occasion he would not see the appellant for days at a time but would see signs that she had been home or receive text messages from her stating that she had been home. He would also observe activity on the farm (for example, animals that were outdoors had been moved indoors) and reasoned that someone was doing that work. He emphatically denied having any responsibility for the care of the animals.

29Mr. Cherniak was also questioned on the contents of a phone call between the appellant and AWS Senior Investigator Robert Winter, who attended the property on November 9. Senior Investigator Winter phoned the appellant on Mr. Cherniak’s phone to inform her of the Order and reported that the appellant told him that she was selling everything and that it was the tenant’s responsibility to look after the animals. Although Mr. Cherniak had been present during this conversation, he said he could only hear parts of it and did not hear this specific exchange. Nevertheless, he confirmed that Senior Investigator Winter relayed to him what the appellant had stated. Mr. Cherniak testified that he was shocked by this information and surprised that he was later named on the Order and the subsequent Notice of Removal.

30I have reservations about relying on Mr. Cherniak’s evidence to support the appellant’s position that she was continually present on the property and caring for the animals. He was only able to point to circumstantial indications of the appellant’s presence on the farm and his evidence was not helpful in establishing the appellant’s care routine.

Oksana Peredery and Sarah Rogers

31Oksana Peredery testified about the appellant’s routine care of the animals. She also described the state of the property and the animals on the November dates, which she observed through a security camera system installed on the property.

32Sarah Rogers testified about the conditions she had observed on the appellant’s farm during prior visits, including on the days leading up to the inspection.

33I considered but ultimately placed little weight on their evidence. Although both witnesses were complimentary of the appellant’s care of the animals and reported seeing animals in good health and a property kept in good repair, I was persuaded by the respondent’s documentary evidence, which showed unsanitary living conditions and animals with visible signs of illness on the November dates.

The Respondent

Inspector Walmsley and Senior Investigator Vandenkroonenberg

34Inspector Morgan Walmsley and Senior Investigator Rachel Vandenkroonenberg testified for the respondent. Both inspectors attended the property on the November dates and documented their findings in animal and housing evaluation logs. Inspector Walmsley was the lead investigator who issued the Order and the Notice of Removal.

35The inspectors reported finding animals in distress, with most of them lacking food, water, and dry and sanitary resting areas. They personally handled some of the birds and found them to be in poor body condition. The investigators’ evidence regarding each species of animal will be discussed in more detail later in these reasons but I will first provide some brief comments on the credibility and reliability of their evidence.

36I found the inspectors to be credible and their evidence reliable. Their observations were corroborated by photographs and videos taken on the November dates, and by medical evidence obtained after the animals were removed and assessed. When they could not speak to a particular requirement or standard of care with enough specificity, they stated so and offered to consult the codes of practice.

37Both witnesses were cross-examined extensively on AWS’s decision-making process on the November dates, and I noted an inconsistency in their evidence as it related to when AWS decided to remove the animals. The timing of the decision to remove the animals was relevant to the appellant’s argument that AWS had prematurely decided to remove the animals and wanted to bring about that result regardless of the appellant’s level of compliance with the Order issued on November 9.

38Inspector Walmsley confirmed discussing the prospect of removing the animals with her colleagues on November 9, but denied that AWS had already decided that it would be removing the animals the next day. When asked why AWS would arrange for transport and have vehicles and trailers waiting and ready to pick up the animals the morning of November 10 if a decision had not been made to remove the animals, she stated that this was common practice and that it was better to have transport available if needed, rather than to need it and not have it.

39Senior Investigator Vandenkroonenberg’s evidence was consistent with Inspector Walmsley’s in terms of the intended effect of the Order (i.e., to provide the animals immediate relief), but contradicted Inspector Walmsley’s version of events on the timing of the decision to remove. According to Senior Investigator Vandenkroonenberg, AWS had already determined that removal was warranted even before it issued the Order on November 9. She said the Order reflected high-priority items and was intended to ensure the animals’ care until removal could occur. She said she began making phone calls shortly after leaving the property on November 9 to secure transport and boarding for the animals.

40Senior Investigator Vandenkroonenberg’s version was supported by the evidence of Dr. Robertson, who was the veterinarian that accompanied the inspectors on the November dates. Dr. Robertson confirmed that the Order was intended to provide basic overnight care as AWS did not have the means to remove the animals on November 9. According to him, had AWS had the transport and boarding available to remove the animals that day, it would have done so.

41I have difficulty accepting that Inspector Walmsley, as the lead investigator on this matter, would have been unaware of AWS’ general position on removal on November 9, which seemed definitive based on Senior Investigator Vandenkroonenberg’s and Dr. Robertson’s evidence. However, she did not deny that removal remained an option throughout, and her answer that a removal decision was not made until November 10 is understandable given her later testimony that the situation would still need to be reassessed the following day and the fact that she did not formally sign off on the decision to remove until November 10. Ultimately, the inconsistency in the inspectors’ evidence did not detract from their credibility.

Browne v Dunn issue

42The appellant argued that a large part of the inspectors’ evidence regarding the conditions observed on the November dates was not put to the appellant in cross-examination and that it would amount to a breach of the rule in Browne v Dunn³ if the respondent relied on the inspectors’ evidence to impeach the appellant’s credibility. In her view, the appellant was not given the opportunity to explain why her daily routine was not present on November 9, and as a result, the Board only got one perspective on the events of that day.

43The rule in Browne v Dunn requires that if a party intends to impeach a witness on a particular issue, they must confront the witness with the contradictory evidence in cross-examination and give them an opportunity to address it.

44I find that the respondent did not breach its obligations under Browne v Dunn. The appellant was cross-examined on her general routine that she testified about in her examination-in-chief. Although the appellant was not taken to specific videos or photographs from the November dates, questions posed to her were premised on the view that the animals lacked food, water, bedding, and sanitary living conditions, and had visible signs of illness. This included questions about the appellant’s whereabouts, her care of different species of animals, and her efforts to secure veterinary care. Based on the appellant’s evidence in chief, it was also abundantly clear that the appellant was aware of the respondent’s position and had ample opportunity over multiple days of testimony to give the Board her version of events as it related to her daily care of the animals and beyond, and to call reply evidence. For those reasons, I do not find that any meaningful portion of the inspectors’ evidence caught the appellant by surprise or that the Board was denied an opportunity to hear the appellant’s version of events and I reject the argument that the respondent violated the rule in Browne v Dunn.

Senior Investigator Winter

45Senior Investigator Winter testified for the respondent. He attended the property on the November dates, assisted with the removal of the animals, and photographed the property. He recounted two phone conversations with the appellant on November 9. These conversations related to a factual dispute between the parties regarding whether the appellant had been away from the property for an extended time, which was the respondent’s position and the lens through which various AWS decisions were made on the November dates.

46During the first phone call, the appellant told Senior Investigator Winter that she was selling everything and that it was the tenant’s responsibility to look after the animals. During a second phone call later that same day, he recalled the appellant stating that she no longer lived at the property and had people coming to look after the animals, which had been sold. When confronted with these statements in cross-examination, the appellant gave a vague response by stating that only some of these words were hers.

47On the issue of whether the appellant made these statements, I was persuaded by Senior Investigator Winter’s evidence. It made sense that upon hearing the appellant say that it was the tenant’s responsibility to care for the animals, Senior Investigator Winter would share this information with the tenant, Mr. Cherniak, to try to confirm who owned and cared for these animals. Mr. Cherniak confirmed that Senior Investigator Winter did relay this to him, and I find it more likely than not that these phone calls occurred as Senior Investigator Winter described them. As a result of these exchanges, it was reasonable for AWS to be left with the impression that the appellant may no longer be caring for the animals.

Participant Experts

48Three AWS staff veterinarians testified for the respondent.

49Dr. Bruce Robertson attended the property on the November dates, physically examined the animals, and issued a certificate advising that removal was necessary to relieve the animals’ distress.

50Dr. Pauline Delnatte assessed and treated a flock of different species of birds, including the two emus, following their removal.

51Dr. Kyle Goldie provided technical support and veterinary supplies to colleagues assessing the sheep and the birds following their removal.

52With reference to the criteria set out in Westerhof v Gee Estate, 2015 ONCA 206, I was satisfied that the veterinarians were participants experts given that:

1. as licensed veterinarians, they had special skill, knowledge, and training;
2. their evidence was based on their observations of or participation in the events at issue, namely the inspections and/or the assessment, diagnosis, and treatment of the animals; and
3. they each formed their opinion as part of the ordinary exercise of their duties while observing or participating in the events.

Dr. Robertson

53Dr. Robertson’s evidence on each species of animal is outlined later in these reasons; the section below discusses the appellant’s arguments regarding concerns about Dr. Robertson’s impartiality and credibility.

54Dr. Robertson is employed by AWS as a Regional Veterinarian. He has practised veterinary medicine for approximately 30 years, with part of that time spent in veterinary forensic medicine.

55The appellant challenged Dr. Robertson’s impartiality⁴ based on an interaction he had with police at the appellant’s property on November 9. The interaction was recorded by on-site video surveillance cameras and showed Dr. Robertson referring to the appellant as a “professional bad actor,” stating “if […] can get the cops on our side for a criminal charge, you’re coming to me with it,” and that “if you decided there were grounds to charge her, great”.

56In cross-examination, Dr. Robertson described his comments as “righteous indignation” and said that he was responding to a situation of severe neglect that affected him personally. He reiterated what he had also relayed to police in the video, which is that police would still have to carry out an independent investigation.

57Relying on White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, the appellant submitted that experts have a duty to provide non-partisan assistance to the tribunal and that Dr. Robertson’s comments and his attempt to “induce an investigation” called into question his impartiality and objectivity as an expert. The appellant argued that the duty of impartiality also extends to when the expert veterinarian authorizes removal under the PAWS Act, which I understood to mean that they must be impartial at the time they form their opinion. On this basis, the appellant asked the Board to exclude Dr. Robertson’s evidence because it did not meet one of the threshold requirements for admissibility.

58The respondent called the appellant’s allegation of bias and impartiality speculative and argued that the appellant failed to show how the alleged bias impacted Dr. Robertson’s conclusions. In the respondent’s view, the appellant led no evidence to challenge the sufficiency and adequacy of the conclusions drawn by Dr. Robertson; on the contrary, those conclusions were supported by the other veterinarians’ findings following a more thorough assessment of the animals after removal.

59While I agreed with the respondent’s general proposition that participant experts are not held to the strict formal rules that apply to the evidence of litigation experts, I disagreed with the submission that the subjective motivations of AWS staff are not an issue for the Board to determine or address. Respectfully, the decision on whether a witness is biased, and whether to accept their evidence, is very much within a factfinder’s mandate. In this particular case, I considered but I did not find that Dr. Robertson’s comments rendered his evidence inadmissible or unreliable.

60On the admissibility of Dr. Robertson’s evidence, I found that his evidence was relevant and that the benefits of admitting the evidence of a medical professional who authorized the removal of the animals and was personally and directly able to observe their condition on the relevant dates outweighed any prejudicial effect that would result from admitting it.

61I was also not persuaded that Dr. Robertson’s comments to police compromised the integrity of his findings such that less weight should be placed upon them. While I appreciate that these comments were upsetting to the appellant, I considered that Dr. Robertson’s view of the appellant was shaped by what he perceived was a pattern of non-compliance with standards of care and that he was speaking of her conduct and not her character.

62Making these comments is also different from a veterinarian either ignoring or failing to consider certain things because they are driven to bring about a particular outcome. I did not find this to be the case. Dr. Robertson’s report and his testimony did not ignore things that were favourable to the appellant. For example, his report noted that the horses and cattle had food available to them. He acknowledged that despite a stressful situation, the appellant was polite and professional with him, which facilitated communication on November 10. He said he considered the appellant’s philosophy of the benefits of “free running” animals and thought it was a good one, but that he disagreed with the way it was being carried out. Dr. Robertson also acknowledged that the appellant was passionate about her animals and very knowledgeable in certain respects, but he had concerns about a perceived disconnect between what the appellant wanted to be doing and the day-to-day reality.

63In sum, I was not persuaded by the appellant’s argument that Dr. Robertson’s comments put into question the conclusions he’d reached about the conditions of the animals, and I found no basis to exclude Dr. Robertson’s evidence or assign it less weight.

Issue 1: Should the Order, dated November 9, 2023, be confirmed, revoked or modified?

64Section 30(1) of the PAWS Act authorizes an inspector to issue an order when they have reasonable grounds to believe that an animal is in distress and that action is necessary to relieve the distress.

65Distress is defined in s. 1(1) of the PAWS Act as the state of being:

1. in need of proper care, water, food, or shelter
2. injured, sick or in pain or suffering, or
3. abused or subject to undue physical or psychological hardship, privation or neglect.

66In addition to the definition of distress found in s.1(1) of the PAWS Act, O. Reg. 444/19: Standards of Care and Administrative Requirements (the Regulation) also sets out basic standards of care required for all animals. If an owner does not comply with the standards of care prescribed in the Regulation, then the care is not proper and the animals are, by definition, in distress.⁵

67The Order issued on November 9 required the appellant to provide species-specific food, water, bedding, and sanitary living conditions to all animals residing on her property. It was issued at 1:48 p.m. and required immediate and ongoing action, with a completion date and time of November 10, 2023, at 9:00 a.m.

68The appellant argued that the Order lacked detail and that despite the short timeframe, she complied with the Order. The respondent acknowledged the short timeframe for compliance but submitted that the Order was necessary to address urgent concerns around basic care.

69For the reasons set out below, I confirm the Order as it relates to each species of animal.

Birds

70I find that the 167 birds located on the appellant’s property on November 9th were in need of proper water, food, and shelter, and that their condition amounted to distress as defined in the PAWS Act.

71On November 9, the birds were housed in several barns and in outdoor pens. Inspector Walmsley and Senior Investigator Vandenkroonenberg testified that the birds did not have proper food or water available. Photographs and video from the property showed containers with traces of water that was soiled. Both witnesses reported a significant accumulation of feces in the bird cages, on various barn surfaces, and on the barn floors, with little to no dry bedding available. As a result of the fecal accumulation, they reported extremely poor air quality in the barns. They also personally handled some of the birds and noted they were skinny. Many birds had eye and nasal discharge, and some were showing signs of cold, lifting their feet and appearing to have missing toes.

72On the availability of water, I considered the appellant’s evidence that because some birds were being given medication in their water, she wanted to ensure that they had taken that medication before making more water available to them. I did not find this to be a persuasive argument to justify the lack of water in the barns – the lack of water or the presence of soiled water was consistent across the board and, on the appellant’s own evidence, not every bird needed medication for their water to be limited or monitored the way she described.

73On the condition of the barns, I was also not persuaded by the appellant’s argument that the birds are not always confined to their indoor pens or that she had been unable to complete her sanitation routine on November 9. While there was evidence in the appellant’s photographs and video surveillance feed that birds were permitted to free range outside, the reality on November 9 was that the birds were confined to extremely unsanitary conditions and had only scatterings of food and soiled or no water available to them. The significant accumulation of feces on indoor surfaces was also indicative of poor bedding and litter management practices, and indicated long-standing issues that could not be attributed to the appellant being late in completing her chores that day. The type of accumulation shown in the photographs, to the extent that door frames on some cages were no longer visible because they were buried under fecal packs, makes it more likely than not that this was a long-standing issue and not the result of missing a round of daily chores.

74The conditions on site were also contrary to many of the requirements set out in the Code of Practice for the Care and Handling of Hatching Eggs, Breeders, Chickens and Turkeys⁶, referenced by the respondent to provide more detail to the General Standards of Care for Animals in Part II of the Standards of Care and Administrative Requirements, O Reg 444/19. For example, as it relates to nutrition and hydration, s. 4.1 of the Code of Practice requires that birds be provided with fresh, potable water in sufficient quantities, and that feed and water be free from contaminants. Photographs showed that conditions on the property fell well below this standard. Water and food dishes were either empty, toppled over, or contained soiled water.

75As it relates to the lack of availability of food, I accepted the appellant’s argument that it would be inappropriate to allow certain birds free access to feed, which is something the Code of Practice acknowledges and states that it can result in serious welfare problems. However, this does not explain why most of the birds had little to no access to food, as was the case across various species of birds and areas of the barn.

76Overall, I find that the birds lacked proper food, water and shelter, and I confirm the Order as it relates to the birds.

Cattle

77On a review of the evidence, I find that the cattle were in need of water and shelter, which is a condition that amounts to distress.

78AWS located 10 cattle on the property, which the appellant had owned since 2012. The respondent filed video evidence of two cattle in an area of the property with a downed fence. Deep mud was evident when Inspector Walmsley attempted to walk across the area. Feed was available to these cattle, but the water troughs were either empty or contained frozen water.

79With reference to additional photographs and videos, Inspector Walmsley described the conditions of additional cattle standing in a deep accumulation of mud and feces. Hay was available but water troughs in the vicinity were empty, and cattle were observed eating snow. The proximity of the hay feeder to the deep mud was also a concern as mud and manure could contaminate the food source. Senior Investigator Vandenkroonenberg also testified that because the hay feeder was the only food source in this area, the cattle would have to stand or walk through the deep mud to access their food. A roofed structure available to the cattle in that area could provide windbreaks, but the ground of that shelter was covered in deep mud.

80The appellant stated that the first group of cattle had accessed the muddy area due to a downed fence, which happens occasionally on her property. She noted that several water sources were available to the cattle but acknowledged that some ice was forming when she checked later that day.

81On the issue of water, I preferred the evidence of the respondent’s witnesses, which was consistent, and corroborated by photographs showing frozen or empty water sources, and I find that the cattle lacked water.

82I also rejected a suggestion that snow could have been a sufficient source of water for cattle. I accepted Senior Investigator Vandenkroonenberg’s evidence that other environmental conditions would need to be met before snow could be used as a water source. This position was consistent with the guidance provided in the Code of Practice, which states that snow should only be used under certain specific conditions, and that the practice could result in risks to cattle welfare if the conditions are not carefully monitored. There was no evidence from the appellant on what the specific conditions were and how she was monitoring them.

83It was also evident from the muddy conditions captured in the respondent’s photographs and videos that the cattle lacked proper shelter and that their condition met the definition of distress.

84The conditions were also contrary to the requirements set out in the Code of Practice for the Care and Handling of Beef Cattle⁷, which include the need for cattle to have access to water of adequate quality and quantity and access to well-drained areas that provide relief from the weather and allow the cattle to adopt normal resting postures at the same time.

85Overall, I find that the cattle were in need of water and shelter, which contravened the requirements in the Regulation, and amounted to distress.

Sheep

86On a review of the evidence, I find that the sheep were in distress and an order requiring the appellant to provide food, water and clean bedding was warranted.

87Inspector Walmsley described the conditions in the barn that housed nine sheep on November 9. She reported seeing a significant fecal pack on the ground and no access to food, water, or clean and dry bedding for the sheep.

88Senior Investigator Vandenkroonenberg also reported seeing a manure pack and no fresh bedding in a second, outdoor, shelter housing two additional sheep. Her concerns extended to the fact that the base of this second shelter was deeper than the surrounding ground, which made it susceptible to waste and water accumulating inside.

89I accepted the respondent’s evidence and find that the indoor sheep were in need of food and water, and that all sheep, regardless of location, lacked sanitary living conditions. I was guided in this finding by the Code of Practice for the Care and Handling of Sheep⁸, which warns that wet conditions and waste in the bedding pose welfare and health challenges to the animals.

90Section 3.1 of the Code of Practice also requires that sheep have sufficient access to feed of adequate quality and quantity. The appellant stated that she was late opening the barn doors the morning of November 9 to allow the indoor sheep to access their food, which was on a lot adjacent to the barn. While I considered the appellant’s evidence, the review of the Order is based on whether the inspectors had reasonable grounds to believe that the animals were in distress during the inspection. The Board’s focus necessarily needs to be on the conditions the morning of November 9, and the respondent’s evidence established that the sheep had little to no food in the indoor barn. The appellant also gave extensive evidence about the importance of supplementing feed with salt and mineral blocks, which suggested that she was aware of these requirements; however, Inspector Walmsley reported seeing neither food nor mineral or salt blocks available to the sheep on November 9.

91For the above reasons, I find that the sheep were in distress for lack of proper food, water, or shelter, which is required by the Regulation, and I confirm the Order as it relates to the sheep.

Emus

92Inspector Walmsley testified about the conditions of a barn that housed the two emus. She reported seeing no water or food for the emus. Senior Investigator Vandenkroonenberg’s concerns extended to the bedding available to the emus, which she described as a light dusting of straw on a concrete slab.

93For her part, the appellant testified that she feeds and waters the emus at minimum twice a day. She places their feed in a specific section of the barn as emu ration is expensive and she wants to prevent other birds from accessing it. She acknowledged their water was low on November 9. In terms of the physical environment, she explained that certain objects in the barn were intentionally placed there to provide enrichment for the emus.

94Accepting the evidence of the respondent’s witnesses, which was supported by photographs taken on November 9, I find that at the very least, the emus lacked proper water and bedding, and I uphold the Order as it relates to the emus on that basis.

Horses

95The appellant testified that she owned three horses, two of them since 2014 and 2016. She acquired the third horse in Spring 2023 and was aware of its health issues, including that it was on the thinner side and some of its ribs were visible. She estimated that this horse was 17 years old. The appellant said she rotates the horses on different fields and provides them with hay, and photographs filed by both parties confirmed the availability of hay on the property.

96The inspectors testified that the horses lacked water and presented photographs showing solid ice in their water containers. The appellant testified that she was in the process of winterizing and insulating the troughs to prevent water from freezing. She acknowledged there may have been some ice forming on November 9 but said the horses also had access to a river and a natural waterway year-round. In cross-examination, she conceded that access to the river was only possible if the gates connecting two paddocks with two adjacent fields were open.

97I find it more likely than not that the horses had access to a natural water system that ran through the property, and I preferred the appellant’s evidence on this point over that of the inspectors, who were unfamiliar with the site and had to contend with a large property. Although the inspectors did not see this natural water source on November 9, they also did not actively look for it and they did report seeing a stream that cut through one of the paddocks on November 10.

98Inspector Walmsley also reported concerns that were echoed by Senior Investigator Vandenkroonenberg regarding the state of one of the horses’ shelters, which was muddy and did not contain dry bedding, which is a contravention of the Regulation. With reference to the Code of Practice for the Care and Handling of Equines⁹, I was persuaded by the inspectors’ evidence that in muddy conditions, which may be caused by weather conditions outside the appellant’s control, horses must have access to a mud-free, well-drained area on which to lie down, and that it is the owner’s responsibility to provide good housing. On this basis, I find that the horses were in need of a proper shelter that contained dry bedding, and I uphold the Order as it relates to the horses on this basis.

99I do wish to note that Senior Investigator Vandenkroonenberg’s testimony about her observations on November 9 often drew attention to physical hazards on the property and there was an emphasis on this issue as it related to the horses. The Order contained no mention of hazards. To the extent that it addressed shelter requirements, the Order spoke specifically to the need for bedding and sanitary living conditions, with the expectation being that the appellant remove waste accumulation and provide dry bedding. As a result of the Order being silent on the issue of hazards, I did not rely on this evidence in reviewing and confirming the Order, and the issue of hazards is addressed in my review of the Notice of Removal below.

Issue 2: Were the animals in distress on November 10, 2023? If so, was it necessary to remove the animals to alleviate their distress?

100On November 10, 2023, AWS returned to the appellant’s property and following a reinspection, issued a Notice of Removal under s. 31(1)(a) and (c) of the PAWS Act. Removal under s. 31(1)(a) requires a veterinarian to advise an inspector in writing that removal is required to alleviate an animal’s distress. Removal under s. 31(1)(c) stems from an owner’s non-compliance with an order issued under s. 30. The Notice of Removal noted concerns over the animals’ “body condition, living conditions, overall distress.”

101For the following reasons, I find that the animals were in distress on November 10 and that removal was necessary to alleviate their distress.

Non-compliance with the Order

102I find that there was partial compliance with the Order when AWS reattended on November 10. The animals had adequate food and water, and many were relocated to or given access to other parts of the property. However, despite the appellant’s progress in remedying some of the concerns, the unsanitary conditions and/or lack of adequate bedding persisted when it came to the birds, the emus, the cattle, and the horses. As a result, many animals remained in need of proper shelter and lacked adequate and appropriate sanitary conditions and resting and sleeping areas, which are basic standards of care required for all animals in s. 3(5) and s. 6(b) of the Regulation. As mentioned earlier, if an owner does not comply with the standards of care prescribed in the Regulation, then the care is not proper and the animals are, by definition, in distress.

103While the appellant ultimately conceded that the birds were in distress at the time they were removed, I also considered and accepted Investigator Walmsley’s evidence that the unsanitary conditions persisted, and shavings were added on top without cleaning the fecal packs.

104The emus did not have an adequate resting or sleeping area. When indoors, they seemed to be relegated to a hallway in the barn; some straw was present, but the appellant did not establish that that was adequate bedding for a large exotic bird.

105In terms of the horses, both Inspector Walmsley and Senior Investigator Vandenkroonenberg said the deep mud and fecal matter in the horse lean-to shelter had not been cleaned and had only minimal bedding on top. There were similar concerns about the cattle shelter. Even if I were to accept the appellant’s evidence that she had removed a layer of fecal matter and/or mud from the shelters, or that the ground layer appeared to be mud but was in fact a different compound, photographs taken on November 10 showed that the dry bedding was beginning to absorb moisture again.

106As for the sheep, I find that the conditions were cleaner and dry bedding was available in the white outdoor shelters. On this point, I preferred the appellant’s video evidence showing that she removed two wheelbarrow’s worth of ground layer and brought in fresh straw, and I conclude that there were no outstanding compliance issues with the sheep.

107Overall, I find there was partial compliance with the Order; however, each type of animal, except the sheep, remained in distress because of outstanding compliance with certain items of the Order. The PAWS Act requires full compliance, and any degree of non-compliance would be sufficient to justify removal.

Veterinarian’s advice

108Relying on Dr. Robertson’s evidence, I find the animals were in distress due to their thin body condition, the pododermatitis, and the respiratory disease that he observed in the bird flock. Dr. Robertson found the poultry to be the most significantly affected and said that most birds were emaciated rather than just thin. He reported that the cattle, the horses, and the sheep were also thin at the herd level, and the horses needed dental care.

109Dr. Delnatte’s clinical findings were consistent with Dr. Robertson’s general observations and supported why removal was necessary given the state of distress and the need for immediate medical care for the birds. Intake examinations confirmed that the birds had severe and painful foot lesions, poor feathering soiled with feces, and prominent keel bones that meant loss of pectoral muscle mass. Birds with severe respiratory signs were started on fluids, antibiotics, and anti-inflammatories, and some were humanely euthanized.

110With respect to the emus, I do not agree with the appellant’s suggestion that because it took multiple inspectors to handle and carry the emus during removal, the emus must have been healthy and strong. The health of an animal is not determined by looking at its size or weight in isolation. Dr. Robertson’s conclusion that the emus were thin was corroborated in part by Dr. Delnatte’s report, in which one of the two emus was deemed to be in thin body condition (i.e., very thin or emaciated). Both emus had poor feathering, which according to Dr. Delnatte indicated that they were kept in unsanitary conditions, or they were too sick to have the energy to preen properly, or a combination of these factors. Dr. Delnatte’s avian examination showed body condition scores of 3/9 and 4/9 and dry and scaly legs on the emus.

111With respect to the cattle, Dr. Robertson noted they were thin and Senior Investigator Vandenkroonenberg made similar observations. While she conceded that cows can present differently depending on the breed, she qualified that statement by stating that hip points or the spine could be visible but that, regardless of breed, you should never be able to see ribcages.

112Dr. Goldie’s evidence corroborated Dr. Robertson’s evidence about the sheep’s thin body condition. Dr. Goldie testified about the testing and treatment of sheep given concerns over anemia and fevers.

113In its totality, the respondent’s evidence supported a finding that the animals had a poor body condition that amounted to distress and necessitated removal. The veterinarians’ findings pointed to the animals lacking appropriate food, medical attention, and the overall care necessary for their general welfare, all basic standards of care required under ss. 3(1) to 3(3) of the Regulation.

114Considering the medical needs described above, the appellant’s argument that the animals could have been assessed on the property and a determination made as to their needs without removing them was not persuasive. Senior Investigator Vandenkroonenberg testified that following removal, she personally assisted with the care of approximately 100 birds at one of the boarding facilities. She said she spent three full days on the property, and assessments and testing were still ongoing when she left. I find that it would not have been feasible to assess and treat the animals on the property, and I share Senior Investigator Vandenkroonenberg’s concerns about how any progress could have been made in treating the animals in an unsanitary environment. For these reasons, I find that removal was necessary to alleviate the animals’ distress.

115In addition to the animals’ thin body condition and medical needs, Dr. Robertson’s evidence extended to the farm-wide lack of sanitary conditions and hazards on the property that posed a risk of injury to the animals, and he explained that this was another reason for recommending removal. His observations were consistent with the inspectors’ concerns, which listed wires, loose boards, and downed fencing among the hazards on the property. Hazards were present for many animals, including the emus, the birds, the horses, and the cattle. That an animal had not been hurt to date, or that they did not have visible signs of injury, does not mean that the risk of injury wasn’t present. The basic standards of care require that pens or other enclosed structures or areas must not contain materials that could bruise, cut or otherwise injure animals (s. 7 of the Regulation). If an owner does not comply with these standards of care, then the care is not proper and the animals are, by definition, in distress.

The necessity of removal given other compliance tools available to AWS

116The appellant challenged the removal by arguing that there were other mechanisms available to AWS to alleviate the animals’ distress, especially where there was evidence that the appellant was willing to and able to comply with orders. The appellant argued that another order could have bee issued to alert the appellant to the inspectors’ concerns and given her an opportunity to address issues that were never formally raised with her, including the hazards. Counsel argued that this would have been consistent with AWS policy, which treats removal as a last resort, as well as with the statutory pathway of remedial legislation that begins with the least “intrusive” measure before escalating to more serious actions.

117In considering this argument, I was mindful that the overarching purpose of the PAWS Act is the protection of animals. To accept the appellant’s argument that AWS inspectors, when exercising their powers in relation to animals in distress, must always move through the provisions sequentially, would not support an interpretation that furthers the legislative purpose of animal protection. While there are circumstances where a “graduated” approach would be appropriate, decisions under sections 30 to 33 are ultimately fact-driven exercises of discretion that place the animals’ welfare at the forefront. There is nothing in the PAWS Act that prevents AWS inspectors from exercising their removal powers before attempting to effect compliance through an order. I also agree with the respondent that the PAWS Act does not require AWS to negotiate options with an owner, who is always responsible for complying with the standards of care with respect to every animal they own or have custody or care of.

118As it relates to the circumstances of this case, I find that distress could not have been alleviated on site and removal was necessary. While I agree with the appellant that items like farm machinery could have been easily moved had these been brought to the appellant’s attention, the state of several structures on the property, the debris, and the unsanitary conditions throughout the pens and the barns could not have been remedied quickly or easily.

119The fact that the appellant had made considerable efforts to comply with a basic order to provide food, water and adequate shelter does not signal to this Board that she was willing to work with AWS to remedy concerns such that the animals should have remained on the property and the situation managed by way of additional orders. The fact that an order was even required for these basic items, and that the task required multiple hours and multiple individuals to complete, supports that it was more likely than not that the appellant had neglected these items for some time. The decision to remove was also reached in the context of a situation where the appellant had no ongoing relationship with a veterinarian, nor was she licensed to provide medical care herself. Her treatment of certain animals with medication was not being supervised by a veterinarian, and I was mindful of Dr. Goldie’s testimony that antibiotic treatment without a veterinarian’s direction is more risky than beneficial most of the time. While the appellant attributed the lack of veterinary care to a shortage of veterinarians in Northern Ontario, there was no indication of what efforts she made to secure veterinary care at all.

120For the reasons set out above, I find that the animals were in distress at the time of removal and that removal was necessary to alleviate their distress.

Issue 3: Should the animals be returned to the appellant?

121The appellant noted that the removal of the animals had an emotional impact on her, and she sought the return of the emus, the horses, the cattle, and the sheep.

122Pursuant to s. 38(9)2 of the PAWS Act, the Board has the power to order the return of an animal removed under s. 31(1). However, given my earlier finding that the animals were in distress and removal was necessary to relieve that distress, I find that there is no basis to return the animals because doing so would return them to a situation of distress. I therefore decline to make that order but it is open to the appellant to apply to have the animals returned under s. 38(4) of the PAWS Act.

Issue 4: Should the SOA dated November 21, 2023 be confirmed, revoked, or varied?

123For the reasons that follow, I vary the SOA from $45,063.32 to $43,684.44.

124Section 35(1) of the PAWS Act permits the Chief Animal Welfare Inspector to serve on the owner of an animal a statement of account regarding the cost of necessaries if it has provided an animal with necessaries to relieve its distress or taken the animal into care.

125The SOA in this case totaled $45,063.32 and consisted of:

1. $12,117.37 in transportation costs;
2. $32,826.95 in boarding costs; and
3. $119.00 in veterinary/laboratory costs.

126The respondent took the position that it was necessary to incur these costs to remove the animals from the appellant’s property and relieve their distress.

127The appellant challenged the SOA on two grounds: a) if the removal of certain animals was not justified and/or the Board finds that the animals should be returned, then the Board should revoke the accounts related to those animals; and b) some costs were unreasonable and excessive. In closing submissions, the appellant conceded the costs related to the removal of the birds.

128While the burden is on the appellant to show that the SOA should be revoked or varied, the respondent has an initial evidentiary burden to prove, on a balance of probabilities, that the SOA reflects the actual costs of necessaries and that these costs were reasonable.

129To that end, Inspector Walmsley reviewed the invoices supporting the SOA and explained how the respondent had selected the vendors involved in transporting and boarding the animals and described their billing practices, all of which is set out in more detail below.

Transportation Costs

130The respondent relied on five invoices related to transportation costs:

1. $508.50 for three horses;
2. $507.58 for birds (mileage only);
3. $2,150 for birds and 2 emus;
4. $4,905.89 for birds;
5. $4,045.40 for sheep and cattle.

131While amounts varied among vendors, Inspector Walmsley characterized the rates as “average” for short-notice transportation services.

132The appellant argued that these costs were excessive and took issue with the large distances travelled to take the animals to various boarding facilities in Southern Ontario, noting that in some cases, the drivers and trailers that picked up the animals on November 10originated from Southern Ontario, which added to the costs.

133I accepted the respondent’s submission that transporting the animals to various facilities to be boarded and care for was necessary to alleviate their distress. I recognize that the animals were transported for long distances, but I accepted Inspector Walmsley’s explanation that vendor availability is very limited in Northern Ontario, and, in this case, the shortage of vendors and services was exacerbated by the number of animals that had to be accommodated.

134Inspector Walmsley noted that charges related to drivers’ meal allowances, or their overnight accommodations, were not included in the SOA because it would have been unfair to pass on those costs to the appellant. I agree with the respondent’s position that boarding costs for the drivers for the night of November 9 should not be included in the SOA. However, the invoice for sheep and cattle transportation did include a charge for a driver’s hotel stay, in the amount of $200.00 plus HST. I find it appropriate to remove this charge from the costs passed on to the appellant and I vary Invoice 175142 by deducting $226.00 from the total of $4,045.40. The revised amount is $3,819.40.

135I also vary Invoice 7207 for $4,905.89 in mileage costs. These costs were part of a larger invoice of $8,146.45¹⁰, where the vendor had applied a discount of 23.5% to the global amount. However, the costs that were passed on to the appellant did not reflect this discount and did not reflect what AWS would have paid the vendor in respect of those services. On that basis, I find that the amount passed on to the appellant was inflated, and I vary the amount to $3,753.01 by deducting 23.5% from the $4,905.89 in mileage costs.

Boarding Costs

136The respondent filed into evidence four invoices related to boarding costs:

1. $18,577 for birds and emus, for November 11-21, 2023;
2. $1,017 for horses, for November 10-21, 2023;
3. $8,775.29 for cattle and additional birds, for November 10-21, 2023;
4. $4,457.66 for sheep and additional birds, for November 10-21.

137While the appellant took issue with the large distances travelled to various boarding facilities, she did not specifically challenge the boarding costs.

138Ultimately, I accepted the respondent’s position that boarding was necessary to relieve the animals’ distress and I found that the boarding costs were reasonable. I accepted Inspector Walmsley’s evidence that the prices charged were typical for emergency housing, and that boarding costs vary depending on certain factors, including the species and the health of the animals. This explained the added costs related to critical care and individual housing for the critically ill birds.

139Biosecurity measures required at the boarding locations also resulted in additional staffing and set up costs. Senior Investigator Vandenkroonenberg testified about the need to bolster biosecurity measures at one of the vendor properties where birds were housed to prevent the spread of diseases. This was corroborated by Dr. Delnatte’s expert report, where she stated that biosecurity measures were necessary after lab results confirmed the presence of Pasteurella multocida, the agent of fowl cholera, in the birds. I therefore find it reasonable that the SOA reflected these additional staffing and set up costs related to biosecurity measures.

Veterinary Costs

140The respondent filed one invoice related to veterinary costs in the amount of $119.00 for a biochemistry profile test conducted by an external laboratory and recommended by a veterinarian to check for avian disease. The appellant did not challenge the accuracy of the invoice and I accept that this was an appropriate diagnostic tool for the assessment and care of one or more sick birds.

141Overall, I find that the SOA generally reflected reasonable costs incurred to remove the animals from the property and relieve their distress, subject to certain items that have been varied.

ORDER

142Pursuant to the powers of the Board under s. 38(9) of the PAWS Act:

1. The Compliance Order of November 9, 2023 is confirmed;
2. The SOA is varied from $45,063.32 to $43,684.44; and
3. The Board declines to make an order to return the animals to the appellant.

Footnotes

1. 1As an exotic bird species, the emus are being considered separately from the rest of the birds.
2. 2Ultimately, one additional day of evidence was required on February 28, with multiple hearing days extended to accommodate the evidence, and closing submissions were presented on March 5, 2024.
3. 31893 CanLII 65.
4. 4The parties used the terms impartial, objective, and unbiased interchangeably in this proceeding.
5. 5Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632.
6. 6Code of Practice for the Care and Handling of Hatching Eggs, Breeders, Chickens and Turkeys. National Farm Animal Care Council, 2016.
7. 7Code of Practice for the Care and Handling of Beef Cattle. National Farm Animal Care Council, 2013.
8. 8Code of Practice for the Care and Handling of Sheep. National Farm Animal Care Council, 2013.
9. 9Code of Practice for the Care and Handling of Equines. National Farm Animal Care Council, 2013.
10. 10There is a computational error on this invoice, which should have totaled $8,172.05 and not $8,146.45.