Animal Care Review Board
Appeals under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Dominic Ivor Khan Appellant
and
Chief Animal Welfare Inspector Respondent
DECISION AND ORDER
Adjudicator: Susan Clarke, Managing Vice-Chair (A)
For the Appellant: Dominic Ivor Khan
For the Respondent: Jason Kirsh, Counsel, Animal Welfare Services
Heard by Videoconference: July 9, 10, 11, and 17, 2024
OVERVIEW
1Dominic Ivor, the appellant, is the owner of 22 thoroughbred horses (the “horses”). He rents a horse farm in Campbellville, Ontario (the “property”).
2The respondent is the Chief Animal Welfare Inspector.
3On May 21, 2024, Animal Welfare Services (AWS) Inspector Jennifer Lee and Senior Investigator Laura Austin conducted an inspection of the horses pursuant to s. 24 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the “PAWS Act”).
4Subsequently Inspector Lee issued four Orders1 pursuant to s. 30 of the PAWS Act on May 23, 2024, with varying compliance dates. Order 4 relates to fencing of the horses’ paddocks (the “fence order”).
5The appellant did not appeal any of the orders. Consequently, they are not before the Animal Care Review Board (the “Board”).
6On the evening of May 27, 2024, while the appellant was not at the property, three of the appellant’s horses escaped from the paddock at a breach in the fence at the northeast corner of the property, adjacent to the main thoroughfare and a neighbour’s driveway. The appellant saw them as he was returning to his property and removed them from the neighbour’s property and relocated the horses to another area of his property.
7By the morning of May 28, 2024, AWS Dispatch and Inspector Lee had received a number of complaints including that an unspecified number of horses were on the highway, and that the appellant had killed one of his horses inhumanely. A number of AWS Inspectors were dispatched to the property, arriving that afternoon.
8On May 28, 2024, Senior Investigator Laura Austin, Inspector Bodenstein, and Inspector Shaleigh Emberson, attended the property with Halton Regional Police Services. They conducted an inspection and contacted Regional Supervisor Eloise Jones and Dr. Bruce Robertson of AWS. The decision was made to remove the twenty-one horses pursuant to s. 31(1)(a) of the PAWS Act, where a veterinarian has issued a certificate advising that removal is necessary to relieve an animal’s distress.
9On May 30, 2024 Inspector Jennifer Lee issued a Notice of Removal to the appellant for 21 horses2, two days after their removal on May 28, 2024.
10On June 12, 2024, the appellant appealed the removal of the horses, and requested that his horses be returned immediately.
11A case conference was held on June 25, 2024.
12The hearing proceeded before the Board as a videoconference format hearing on July 9, 10 and 11, and 17, 2024.
PRELIMINARY and OTHER ISSUES
Changing the Issues in Dispute
13The parties confirmed that the only matter before the Board in the hearing was the appeal of the removal of the twenty-one horses. I noted that the respondent had submitted information regarding a further appeal pertaining to a Decision to Keep the horses removed. As this appeal is not before the Board in this hearing, the respondent’s submission regarding the second appeal is not being considered by me.
14The parties consented to the following issue to be decided:
Can the 21 horses be returned to the appellant?
Production of Documents
15The appellant made a motion, requesting that I order disclosure of the following documents:
a. AWS photographs of the fence at the property’s northeast corner, taken on May 29, 2024; and
b. Emails and texts between AWS Inspector Lee and Senior Investigator Austen, from May 29, 2024.
16The appellant advised that he had requested these documents from the respondent, as he believed that they were material to the appeal. He explained that the respondent declined his request because it took the position that the materials were irrelevant to the appeal, as they related to matters which occurred after the removal of the horses.
17The respondent submitted that these materials were not relevant to the removal as they occurred after the removal. It added that this evidence would prejudice the respondent because the Board had denied them the opportunity to lead other evidence.
18The appellant submitted that the email communications were not consistent with the AWS notes in the Document Brief. He added that the photographs were relevant because they show that he had repaired the damaged fencing at the northeast corner of the property the day after the horses were removed. He submitted that he would have been able to repair the fence on the day of the removal and had started the repair before AWS had arrived.
19The appellant further submitted that he had stopped repairing the fence when Senior Investigator Austen proceeded with the removal, to assist with the removal of the horses. The removal took six hours. With the requested evidence, he hoped to prove that the horses would not have needed to be removed because of the damaged fencing if he had been given time on May 28th to fix it.
20I ruled that the evidence was relevant and ordered the respondent to submit it before we proceeded.
Further Disclosure ordered
21Inspector Lee referred to a sketch she made of the northeast area of the property during her testimony. The sketch showed the various pastures housing the horses, the appellant’s driveway, and the main thoroughfare. I ordered that it be submitted, and it was labelled as Exhibit 2.
22While the “fence order” was not under appeal before me, I found it relevant to understanding the removal of the horses. I ordered that it be submitted, and labelled it Exhibit 8.
23The respondent’s Book of Documents (“BOD”) included a number of photographs and videos that I could not access because they had not been submitted using the Board’s Sensitive Management Content service.
24On this basis, I ordered the respondent to submit the many photos and two videos that were included, and these were accepted as Exhibits 3, 4, 10 and 11.
The Appellant’s Submissions
25The Case Conference Report and Order issued on June 26, 2024 provided hearing management details, including the need to submit a BOD by July 4, 2024.
26The Board did not receive the appellant’s BOD and inquired if he was withdrawing his appeal. He advised that he had submitted it to the respondent only. He then submitted eight e-mails, each with attachments, all photographs or videos, late in the afternoon of July 8, 2024. The 3 photos submitted in one email were accepted as Exhibit 13. The video was accepted as Exhibit 15. He did not refer to the other submissions; accordingly, they were not entered as exhibits.
27During the appellant’s cross-examination of Inspector Jennifer Lee, he asked permission to show her photographs of some wire fencing (referred to by Inspector Lee as “cow panel fencing”) in order to verify the size of the openings. These were entered as Exhibit 7.
28On July 9, 2024 I received the various documents ordered by me, or in the case of Exhibit 7, accepted by me. The appellant submitted additional materials that I did not consider as they were not exhibits.
Did the appellant receive the Order regarding fence repairs?
29During Closing Arguments, the appellant claimed that he had never received the fence order. He submitted that because he never received it, the respondent’s justification for the removal was therefore flawed.
30I ordered the respondent to make written submissions on July 18, 2024, which it did. The submissions included:
a. A sworn affidavit of Inspector Lee affirming that the “fence order” had first been served on the appellant on May 23, 2024 by email, then later provided in disclosure on June 2, 2024, and then provided in the Document Brief on June 4, 2024.
b. Exhibit A – May 23, 2024 email from Inspector Lee to the appellant, with six orders (the first one of which is Exhibit 13, and includes four separate Orders on one document), the NFACC Equine Code of Practice, O. Reg. 444/19, and the PAWS Act.
c. Exhibit B – June 2, 2024 email from AWS counsel Jason Kirsh providing a link to the Respondent’s Disclosure.
31I have reviewed s. 68 of the PAWS Act, and note that service by email is permitted, and that service has been deemed effective on the day shown on the first page of the email message. In this case, I find that the appellant received the “fence order” on May 23, 2024.
32I find that the appellant received the fence order because it was emailed to him on May 23, 2024 by Inspector Lee, and he further received it from the respondent’s counsel on June 2 and June 4, 2024 in disclosure and the BOD, respectively.
The Appellant’s Name
33When the appellant was sworn in, he gave as his name “Dominic Ivor Khan.” As this was different than the name provided me on his case file, I asked him to explain the difference.
34The appellant explained that his legal name was Dominic Ivor Khan, but that he went by Dominic Ivor.
35While we continued the hearing with me addressing him by his preferred name, this decision references only his legal name.
ISSUES IN DISPUTE
36The issue to be decided is:
Can the horses be returned to the appellant?
37To decide this issue, I must determine the following:
Were the horses in distress when they were removed on May 28, 2024?
Was the removal done in accordance with s. 31(1) of the PAWS Act?
Was it necessary to remove the horses?
RESULT
38The appellant’s request for the return of the horses is dismissed.
ANALYSIS
Issue: Were the horses in distress when they were removed on May 28, 2024?
39For the reasons that follow, I find that the horses were in distress when they were removed on May 28, 2024.
40Section 31 of the PAWS Act provides various reasons to justify an AWS Inspector removing an animal, and taking possession of it. Each one of these speaks to an animal being in distress. The purpose of removing the animal is to relieve its distress. These will be discussed in more detail later.
41Section 1(1) of the PAWS Act defines distress as the state of being:
(a) In need of proper care, water, food or shelter,
(b) Injured, sick, in pain or suffering, or
(c) Abused or subject to undue physical or psychological hardship, privation or neglect.
42O. Reg. 444/19: Standards of Care and Administrative Requirements (the “Standards”) made under the PAWS Act states the following:
3(7) If an animal is confined to a pen or other enclosed structure or area,
(a) The pen or other enclosed structure or area, and any structures or material in it, must be in a state of good repair;
(b) The pen or other enclosed structure or area, and any surfaces, structures and materials in it, must be made of and contain only materials that are,
i. Safe and non-toxic for the animal, and
ii. Of a texture and design that will not bruise, cut or otherwise injure the animal
43The respondent submitted that a violation of the Standards is also considered to be distress, citing Pryde v. CAWI3 in which the panel stated that “the phrase “proper care” includes care in compliance with the minimum standards prescribed by the [PAWS Act] and its Regulations”, and found that “if the standards of care as set out in the Regulation are not met, then such care is not proper for the purposes of the [PAWS Act] and, as a result, such improper care amounts to distress.”
44Dr. Robertson did not attend the property. He testified that Senior Investigator Austin called him on May 28, 2024 and provided him information regarding the fencing, the horse’s injury, and a colt being euthanized due to a previous fence injury. By his own admission, he did not study the photographs or videos she sent to him. Dr. Robertson said that he relied on information provided to him by Senior Investigator Austin that the horses were in distress, and based his decision to issue the Certificate on the following:
(a) The fencing was inadequate because the horses escaped;
(b) A colt had an injury in the area above its foot caused by fencing; and
(c) Another colt had to be euthanized because of injuries caused by fencing; and
(d) The pasture fences were in poor repair and were of materials that could cause injury.
45Dr. Robertson further stated that he believed the appellant was in contravention of the Standards, specifically clauses 3(7)(a) and 3(7)(b).
46The fence order, issued on May 23, 2024 required the appellant to do the following work by June 11, 2024 at 10:00 a.m. (paraphrased):
Ensure pen or other enclosed structure or area containing the horses, and any structure or materials in it are in good repair, safe and of non-toxic materials, and of a texture and design that will not bruise, cut or otherwise injure the animals.
47The appellant argued that while the second horse had a cut, it was of no significance compared to that of the colt who was euthanized. He argued that since the horses weren’t removed when the Inspectors first saw the injured colt on May 21st, there was no reason to believe this minor injury was sufficient to justify removal.
48The appellant submitted that he hadn’t appealed the fence order because he felt that he had been given sufficient time to make the necessary repairs. He didn’t argue the respondent’s position that inadequate fencing caused the horses distress, only that he still had until June 11, 2024 to comply. He further argued that the breach could be repaired immediately.
49I am persuaded by the respondent’s evidence that the paddock fencing throughout the property was in poor repair, and that there was old fencing debris on the ground, and that the wire fencing and many of the posts had caused injury to the horses. I find that the horses were in distress for this reason. As discussed later in this decision, while the appellant was able to move the colts and stallion to a paddock to the west of the roadside paddock temporarily, the respondent was of the opinion that the fencing quality was the same throughout the property and would not be any more secure against escape than the roadside paddock.
Was the removal done in accordance with [s. 31(1)](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html#sec31subsec1_smooth) of the [PAWS Act](https://www.canlii.org/en/on/laws/stat/so-2019-c-13/latest/so-2019-c-13.html)?
50For the reasons that follow, I find that the horses were removed in accordance with the PAWS Act.
51Section 31(1) of the PAWS Act states the following:
An animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of relieving its distress if,
(a) A veterinarian has advised the inspector in writing that relieving the animal’s distress necessitates its removal;
(b) The inspector has inspected the animal and has reasonable grounds for believing that,
i) The animal is in distress and the owner or custodian of the animal is not present and cannot be found promptly, or
ii) The animal is in critical distress; or
iii) An order respecting the animal has been made under s. 30 and the order has not been complied with.
52The Notice of Removal issued on May 30, 2024 to the appellant stated that the animals were removed because of clause 31(1)(a) of the PAWS Act, and that the distress was caused by “fencing in poor repair, multiple horses on the road on May 27th, 2024, ’Peekaboo‘ humanely euthanized due to injuries sustained from fencing, injuries consistent with altercation with fencing.”
53In justifying the removal, the respondent provided a copy of the Certificate of a Veterinarian Advising the Removal or Euthanasia of Animal(s) (the “Certificate”). The Certificate was signed by Dr. Bruce Robertson, an AWS staff veterinarian.
54When questioned by me as to why she consulted with Dr. Robertson and ultimately justified the removal of the horses based on his Certificate, Senior Investigator Austin said none of the other options in s. 31(1) applied. This included that the outstanding fencing order was still open, as the compliance date was June 11, 2024. When asked if subclause 31(1)(b)(ii) had not been an option based on the definition of critical distress4, she respondent that the animals were not in critical distress.
55Senior Investigator Austin testified that she had consulted with Dr. Robertson the morning of May 28th before she attended the property. She consulted with him again after arriving at the property and conducting an inspection. Both Senior Investigator Austin and Dr. Robertson testified that the consultation was to confirm his opinion that the horses were in distress. She testified that following Dr. Robertson’s opinion in the afternoon consultation, Regional Supervisor Jones authorized the removal of the horses.
56As stated above, Dr. Robertson testified that he determined that the horses were in distress because:
(a) The fencing was inadequate because the horses escaped;
(b) A colt had an injury in the area above its foot caused by fencing;
(c) Another colt had to be euthanized because of injuries caused by fencing; and
(d) The pasture fences were in poor repair and were of materials that could cause injury.
57Both Senior Investigator Austin and Dr. Robertson also testified that Dr. Robertson had inquired if the horses could be moved elsewhere on the property, or to another property by the appellant to avoid removal by AWS. This will be discussed in the next section, but Senior Investigator Austin advised Dr. Robertson that there was nowhere on the property where she believed the horses could be safe, and that the appellant was unwilling to move the horses elsewhere off the property.
58The appellant did not dispute the evidence that the horses were removed in accordance with the PAWS Act, being that a veterinarian had issued a Certificate.
59While Dr. Robertson explained why he found the horses were in distress, and these were listed on the Certificate, I was unclear whether he answered the second part of clause 31(1)(a) that removal of the horses was necessary to relieve their distress.
60The appellant testified that nothing had changed regarding the fence condition, other than that the northeast corner had been breached and three horses had gotten out. He testified that as he drove towards his property, he saw two horses standing on the neighbour’s driveway, and a third horse stepping over the fence. He removed the five horses, including the stallion, from the front pasture and moved them to a different pasture. He then proceeded to start repairing the northeast corner fence.
61The appellant further testified that the horse that was euthanized was seen by the inspectors during their May 21st inspection, and although they issued the fence order, they did not remove the horses. He stated that in consultation with his veterinarian, he made the decision to humanely euthanize the colt rather than pay for expensive surgery. He noted that the injury to the second colt was very minor, and not at all as serious as that suffered by the first colt. He said there was no evidence that it was caused by fencing, and that minor cuts were not unusual in horses.
62Inspector Lee testified that when she issued the fence order, she provided until June 11 2024 for compliance because she wanted to give the appellant adequate time to make the many necessary repairs.
63Senior Investigator Austin testified that on May 28th she believed there was now some urgency for the fencing repairs. Her rationale was that while the horses escaped from the northeast corner of the property, she was concerned that they could escape from anywhere in the paddocks because the fencing was similar to that in the roadside paddock from which the horses had escaped. She maintained that while a compliance date of June 11th had initially been given to comply with the fence order, that the horses’ escape showed that the situation was now urgent.
64The appellant testified that when he repaired the northeast corner fencing, he discovered that it had been cut. He suggested that this may have been done deliberately by a disgruntled tenant who he was in the process of evicting. He submitted that this was evidence that the horses had not compromised the remaining fencing, and as he had already moved the horses from the front paddock, they were not at risk of escaping.
65I accept the appellant’s submissions regarding the two injured colts. While they were in distress, the first had not sufficiently concerned the Inspectors to remove the animals on May 21st. This horse was euthanized because of the cost of surgery. The second horse’s injury near its hoof was not visible to me in the photograph until it was pointed out to me.
66I heard from the appellant his frustrations regarding his tenants and their frequent attempts to sabotage the horse enclosures, including disengaging gates, and now possibly cutting the wire in the fencing at the northeast corner. He submitted screenshots of texts to them telling them their behaviour was not acceptable, and ultimately, he had them evicted. He submitted a video of one of the tenants telling him on July 1, 2024 when he returned with the police to collect his items “We did our job, your horses are gone, you are evicted.”
67The appellant testified that he had an adversarial relationship with his tenants, and that they were sabotaging his pastures by knocking down the pasture gates. While I sympathize with the appellant, by his own admission they did these on several occasions when he was away from the property. He could not stop them until he was successful in evicting them, a full month after the horses were removed.
68I find that the fencing condition throughout the property was dire, and that the veterinarian issued the Certificate because it was necessary to relieve the horses’ distress. While I heard two alternate explanations regarding how the horses got out, I am persuaded that there was a risk that the horses could get out again and that it was necessary to remove them to relieve their distress. This is regardless of whether the horses got out because the fencing was inadequate or because of possible sabotage.
69I find that removal of the horses pursuant to s. 31(1) was done in accordance with the PAWS Act.
Was it necessary to remove the horses?
70I find that the removal of the animals was necessary.
71Senior Investigator Austin testified that:
On May 28, 2024 at 8:09 a.m. she had a text conversation with Inspector Lee that she had received additional information from three different individuals that horses got out on the road, and the situation was now urgent. She did not make a decision to remove the horses at that time.;
She learned that Peekaboo had been euthanized as a result of injuries sustained on May 20th;
She consulted with Dr. Robertson before she attended the property;
At 9:00 – 9:30 a.m. she arranged for transportation for the horses to be on standby, should removal become necessary.;
She attended the property at 1:00 p.m., and walked along the boulevard adjacent the fence and found a breach in the fence at the corner of the neighbour’s property (the Klemm’s) and the adjacent road;
The remaining fence had not deteriorated since the May 21st inspection;
She confirmed with Mr. Klemm that the horses got onto his property;
She could not confirm the number of horses who escaped from the paddock;
She reached the decision to remove the horses after she inspected the property. Given the latest information that the horses could not be contained, the foal was euthanized due to injury, and that the horses had new scarring consistent with fence injuries from sharp fencing, the situation regarding the fencing became more urgent.
She spoke again with Dr. Robertson who asked if the horses could be moved elsewhere on the property or to another property instead of AWS removing them, to which she answered they could not. Dr. Robertson then said he would issue a Certificate, and got approval from Regional Supervisor Jones for the removal.
She spoke with the appellant at 2:00 p.m. when he returned to the property;
She was aware the appellant was attempting to fix the northeast corner of the fencing. Her concern however was with the entirety of the property fencing, not just that in the northeast corner. She testified and showed photographs to show that the style of fencing was inadequate, was too low, that fence posts were leaning; and
She inspected the fence repair on May 29th.
72Under cross-examination, Senior Investigator Austin stated:
The urgency was that the fencing was not able to safely contain the horses on the property in its entirety, as the fencing was the same throughout the property;
She preferred to speak with the appellant at the property, rather than phoning him;
She said the horses would be returned if he complied with the fencing order;
She ordered the transporter at 1:36 p.m., before she interviewed the appellant at 2:00 p.m.;
She asked Regional Supervisor Jones if the appellant could have time to repair the northeast corner of the fencing. She could not recall if she was given permission, however she instructed him to go ahead and start repairs.
73Dr. Robinson testified that:
Senior Investigator Austin called him before she attended the property, to provide the case history and to explain the evolving concerns. She called again when she attended the property and advised him that five horses were on the road the previous night, the road had a high speed posted, and visibility was poor because of a large hill on the road, and it was evening;
Other concerns included that the exterior fencing was not adequate to contain horses, the interior fencing presented a concern of injury, and the recent death of the horse who had previously been injured by fencing;
He ascertained that there was nowhere else to house the horses elsewhere on the property so they wouldn’t be exposed to the road fencing, and that the appellant could not move the horses to another farm;
On the basis of this information, he advised that the animals were in distress and that Senior Investigator Austin had no alternative but to remove the animals;
He was aware that there was a fencing order that was not due until June 11th, but was satisfied that despite the order, the animals were at significant risk. He added that while there was a compliance deadline, there was an expectation that fencing be fixed as soon as possible;
During the May 28th inspection, Senior Investigator Austin reported that two horses got entangled in wire, but got loose.
74Under cross-examination, Dr. Robertson testified that:
The number of horses that escaped was immaterial if they got out on the road;
While he took the information that the horses were on the road in good faith, his concern was based on the possible hazards of being on the road;
His question to Senior Investigator Austin was whether the horses could safely be confined away from the road, and with fencing that was safe;
If the fencing was otherwise in good repair, and one discrete section failed but was repaired to the same quality as the rest of the fencing, then his concern would be much lower.
75In response to my questions, Dr. Robertson testified that:
From the photos he saw, there were areas of the fencing where horses could jump or step over;
Most horse injuries he has seen and treated are where horses get caught in loops of wire, panic and fight it and get injured;
In his conclusions, he relied on Senior Investigator Austin’s descriptions.
76The appellant raised numerous concerns in his testimony:
Senior Investigator Austin was predisposed to remove the horses, before ever arriving at the property on May 28th. Her texts early in the morning with Inspector Lee and her emails are evidence that she intended to remove the horses as they were sent before she inspected the property;
Senior Investigator Austin had a copy of the Certificate from Dr. Robertson before she arrived at the property. In his reply closing submissions, the appellant submitted that Dr. Robertson’s written notes indicate the decision to remove was made before 1:00 pm, when she arrived at the property;
Senior Investigator Austin never interviewed him, relying on the reported complaints. She never examined the fencing breach at the northeast corner to determine how the horses got out;
The Certificate was based on false information provided by Senior Investigator Austin. This included that the appellant would not or could not move his horses to another facility to be boarded;
Senior Investigator Austin didn’t allow him time to repair the breach in the fence Even though he told her he could repair it in 45 minutes. The removal took six hours.
Was Austin predisposed to remove the horses, before she arrived at the property on May 28th?
77I am persuaded by Senior Investigator Austin’s testimony that:
She prepared for the worst scenario based on the complaints that she received before she attended the property – she contacted the veterinarian who euthanized Peekaboo, consulted with Dr. Robertson, engaged the police for assistance, and arranged for a transporter to be on standby should removal be necessary. She explained that her texts were not an indication of a decision to remove;
She arrived at the property at 13:00 and met with the neighbour Mr. Klemm, who confirmed that the horses got out onto his property. She examined the damaged fence at the northeast corner of the property. She spoke with the appellant when he arrived at 14:00.
She spoke with Dr. Robertson at 12:07, and again with him and Regional Supervisor Jones at 13:53 after spending an hour interviewing witnesses and inspecting the property. It was at this point that Dr. Robertson asked if the horses could be safely contained within the property or if the appellant could move them to another property to avoid removing them. At that point Dr. Robertson advised that removal was necessary to alleviate distress and that he would sign a Certificate. Regional Supervisor Jones authorized removal.
78I note that the Certificate was issued at 13:43, which indicates that Senior Investigator Austin did not have it before she attended the property.
79I note as well that there is a discrepancy between Dr. Robertson’s notes and those of Senior Investigator Austin regarding the time of their telephone consultation, and further the time on the Certificate. I am not concerned with these because Dr. Robertson testified that he was busy with other matters that day, and he did not spend a lot of time on the case. His notes are incomplete as they did not record the time of his later consultation with Senior Investigator Austin and Regional Supervisor Jones, nor the precise time he issued the Certificate.
80I find that Senior Investigator Austin was not predisposed to moving the horses prior to arriving and inspecting the property.
Did Senior Investigator Austin provide false information to Dr. Robertson, that he based his assessment on when issuing the Certificate?
81Dr. Robertson testified that he was provided the following background information by Senior Investigator Austin, by telephone on May 28, 2024 before she arrived on the property:
The perimeter fence was in disrepair to the point that 5 horses were able to get out and onto the highway the night before;
The interior fence was in disrepair to the point that it posed a safety risk to the horses;
A young horse had to be euthanized because of becoming entangled in the interior fencing;
Unsafe living conditions including protruding nails on boards, excessive garbage and debris existed in the pastures.
82Dr. Robertson testified he spoke with Senior Investigator Austin again while she was inspecting the property. Senior Investigator Austin confirmed her earlier description, adding that she observed two horses becoming entangled in sections of fencing. In response to his questions, she advised that there was no way to safely confine the horses using interior fencing and paddocks, and that the appellant was not able to move the horses to another property.
83There are inconsistencies regarding what happened:
The appellant testified, and Mr. Klemm told Senior Investigator Austin that the horses got onto Klemm’s property, not onto a highway;
Senior Investigator Austin’s description of “entanglement” with wire, when demonstrated, did not match what Dr. Robertson understood it to mean5;
Senior Investigator Austin told Dr. Robertson that the appellant was not willing to move his horses to another property, before she asked the appellant;
The appellant believed the stallion and colts had been moved to a safe paddock away from the road, however Senior Investigator Austin believed that location was also unsafe because of the debris within it.
84I am persuaded by Dr. Robertson’s testimony that distress was not theoretical as there had already been a significant injury leading to a death, that he concluded the horses were in distress because of the inadequacy of the fencing, and that the animals were at significant risk of injury. I am further persuaded that Dr. Robertson was only concerned that horses were on the road, or capable of escaping onto it.
85Although it is clear that had Dr. Robertson actually visited the site and learned that the horses were not on the road, and examined the fencing himself, he would have had a more accurate picture of the circumstances, he testified that inadequate fencing, injuries of some horses from fencing, and one injury serious enough to need euthanasia were sufficient to indicate the horses were in distress and needed to be removed to relieve them of distress.
86In conclusion, I do not find that Dr. Robertson formed his opinion of distress, nor did he issue the Certificate based on false information from Senior Investigator Austin.
The timing of the removal
87The appellant testified that he would have had the corner repaired on May 28th, and that it would only take him 45 minutes to do so, having already started that morning. He submitted that he ceased the repair to assist with the removal of the horses which took six hours, but that he understood that Senior Investigator Austin would return the following day and if satisfied with the repair, return the horses.
88Senior Investigator Austin testified that the appellant had the corner repaired by the next day, although she asked him to make it higher to prevent the horses from jumping over it. However, she explained her concern was not limited to the corner; the type of fencing was similar throughout all the paddocks, and given that the corner had been breached, she now had a concern that the horses could get out from the other pastures. While the fence order issued on May 23, 2024 was not yet due, there was now more urgency to get this fixed before the June 11, 2024 compliance date.
89It appears that Senior Investigator Austin and the appellant were looking at the fencing issue from different perspectives: Senior Investigator Austin believed that the fencing in its entirety could be compromised at any time given that the horses had already demonstrated that they could escape, when they escaped from the northeast corner. The appellant believed that the only issue with the fencing was at the northeast corner where the horses got out on May 27th.
90Senior Investigator Austin did not believe there was any area within the paddocks that the horses would be safe from getting out, or that they would be safe from injury from the fencing materials. Her concerns were that the fencing was lower than it ought to be, allowing horses to jump over, and that the fence posts were leaning, which dragged the fencing down lower. She was also concerned with some of the fence posts not being capped, which she believed were the cause of some recent scarring on the horses. One horse had a cut near its hoof, which she felt was typical of a fencing injury.
91I find that the removal of the horses was necessary.
Conclusion
92I find that the horses were in distress on May 28th when they were removed, that the removal was in accordance with the PAWS Act, and that the removal was necessary.
93The appellant’s request for the return of the horses is dismissed.
Released: July 30, 2024
Susan Clarke, Managing Vice Chair (A)
Footnotes
- On a single Order form document
- One horse, Peekaboo, had been euthanized on May 27, 2024 while in the custody of the appellant.
- Pryde v. CAWI, 2022 ONSC 6632, Paragraph 52
- Definition of critical distress in s. 1(1) of the PAWS Act: distress that requires immediate intervention in order to prevent serious injury or to preserve life.
- Dr. Robertson testified that entanglement meant wiring wrapped around a horse’s foot and the struggle to escape causing serious injury. When cross-examined, Senior Investigator Austin testified that the two horses feet got caught in wire fencing laying on the ground, and that they disengaged themselves by stepping up and down. The differentiation made was between wrapping and tripping, the latter presenting a greater risk of injury.