Jennifer Adams v. Chief Animal Welfare Inspector, 2024 ONACRB 96

Date: 08/27/2024

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

Between:

Jennifer Adams

Appellant

and

Chief Animal Welfare Inspector

Respondent

DECISION AND ORDER

Adjudicators: Debra Backstein, Member Ziba Heydarian, Vice-Chair

Appearances:

For the Appellant: Jennifer Adams, Self-represented

For the Respondent: Joanna Chan, Counsel

Heard by videoconference: July 8 and 9, 2024

OVERVIEW

1Jennifer Adams, the appellant, is the owner of two Great Danes, Abercrombie and Billy the Kid (the “Dogs”), which were located at her residence in Kitchener, Ontario (the “Property”).

2On May 1, 2024, Animal Welfare Services (AWS), as well as Waterloo Regional Police Services, attended the Property to execute an AWS Animal in Distress Warrant.

3Upon inspection, the Property was found to be unsanitary and hazardous to the Dogs and a Notice of Removal (NOR) was served on May 1, 2024 pursuant to s. 31(1)(a) of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c.13 (PAWS Act) based on a veterinarian advice that removal was necessary to relieve the animals’ distress.

4On May 7, 2024, a Notice of Decision to Keep Animal(s) in the Chief Animal Welfare Inspector’s Care (DTK) was issued for the Dogs on the basis that keeping the Dogs in care was necessary to relieve the animals’ distress and because there were reasonable grounds to believe that the dogs would be placed in distress if they were returned to the appellant.

5On May 22, 2024, a Statement of Account (SOA) was served on the appellant in the amount of $6,424.05 pursuant to s.35 of the PAWS Act, which included the costs of providing veterinary care, animal care, transportation, and boarding to the Dogs.

6The appellant appealed the NOR, DTK, and SOA, to the Animal Care Review Board (Board) and the matters proceeded to a videoconference hearing on July 8 and 9, 2024.

ISSUES

7The issues to be decided are:

1. Were the Dogs in distress at the time of removal? If so, was it necessary for AWS to remove the Dogs to alleviate their distress?

2. Should the Dogs that were removed and subject to the DTK be returned to the Appellant?

3. Should the SOA be confirmed, revoked, or modified?

RESULT

8For the reasons that follow, the Board:

1. Finds that the Dogs were in distress on May 1, 2024, and it was necessary to remove them to alleviate their distress.

2. Finds that the conditions that caused the Dogs to be removed from the Property on May 1, 2024, have not ceased to exist and as such, the Dogs should not be returned to the Appellant.

3. Confirms the SOA dated May 22, 2024, in the amount of $6,424.05.

EVIDENCE AND ANALYSIS

Issue 1 (a) - Were the Dogs in distress on May 1, 2024? If so, was removal necessary to alleviate their distress?

9For the reasons that follow, the Board finds that the Dogs were in distress on May 1, 2024, as the conditions in which the Dogs were living at the Property did not meet the prescribed standards under the PAWS Act and the Standards of Care and Administrative Requirements Regulation, O.Reg.444/19 (Regulations). The Board also finds that the removal of the Dogs was necessary to relieve them of distress.

10Section 31 of the PAWS Act gives the authority to the AWS to take possession of an animal in distress.

11Section 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

12Section 3 of Regulations sets out basic standards of care for all animals. The Regulations state that every animal must be provided with adequate and appropriate food and water, care for its general welfare, a proper resting and sleeping area, sanitary conditions, protection from the elements, and adequate space, light and ventilation.

13Owners of animals are required to comply with the minimum standards prescribed in the Act and in the Regulations. If they do not, the animals are by definition “in distress”.

14Inspector Wintermute testified that she and a team from AWS, including veterinarian Dr. Jackson, attended the Property on May 1, 2024, in response to a complaint. AWS received videos and photographs of the Property taken on April 4, 2024, by the complainant.

15Inspector Wintermute testified that AWS executed a search warrant prior to the appellant arriving home. Upon making their way to the Property, AWS found the door unlocked and the Dogs were directly behind the front door before they hurdled over a makeshift barrier of wire gate and wooden lattice fence to move away from the inspectors.

16We were persuaded by Investigator Wintermute’s evidence. Her testimony as to the observations she made during the search support a finding that the Dogs were in distress. Specifically:

1. No food or potable water was available to the Dogs anywhere in the home and the ammonia levels were well above acceptable levels (10-15 parts per million which is greater than is seen in most rescues which house many more dogs).

2. The floors were slippery and soiled with urine, feces and dirt throughout the Property.

3. It was difficult to walk through the Property due to debris, soiled and wet fabric on the floor, garbage, household goods and furniture throughout the main floor and the Dogs were exposed to broken glass and exposed nails, in various parts of the Property.

4. There was a toilet in the middle of a room covered in and full of what appeared to be human feces and non-potable water that was accessible to the Dogs.

5. There were rooms where the ceiling had fallen in, and insulation was hanging down from the second floor.

6. The Dogs had free access to the basement, where one was found exposed to electrical wires in puddles, feces and nails.

17Dr. Jackson, who was part of the AWS team who attended at the Property on May 1, 2024, prepared an expert report on that same day. The purpose of her attendance was to assess the condition of the Dogs and to determine if removal was necessary to alleviate their distress.

18Dr. Jackson’s report and testimony during the hearing were consistent with Inspector Wintermute’s observations. We were particularly persuaded by the following aspects of Dr. Jackson’s evidence:

1. AWS team members wore and required personal protective equipment including disposable hooded coveralls, eye protection steal-toed boots, half mask respirators with ammonia cartridges and disposable gloves to inspect the premises to avoid the hazardous conditions at the Property.

2. When moving debris and other materials to create a safe path for exit for the dogs, a box of rodenticide was found on the ground, which can be lethal to dogs.

3. Dried blood was found on the walls and doors in a smear pattern and at a height which was “evident that it was coming from a tail injury and the pattern is produced by the tail wagging and hitting surfaces”.

4. The Property showed evidence of mold and water damage.

5. In many areas, she could not see the floor because of the amount of urine, feces, debris and garbage that was in the Property.

6. Every room in the Property “represents a physical hazard that could result in serious injury and/or illness of the Dogs”.

7. No dog food was found in the home and there was “no obvious water source identified in the home”.

8. Billy the Kid had a full-length tail which indicated that the blood smears were from her tail. Dr. Jackson stated in her report that Billy the Kid had been suffering chronically from Happy Tail Syndrome which had led to chronic open wounds on her tail leading to a pattern of blood smears found in every room of the home. The appellant had failed to ensure that Billy the Kid had been provided with proper veterinary care for this condition.

19Dr. Jackson also noted in her testimony that removal of the Dogs was necessary to alleviate the Dog’s distress as opposed to imposing compliance orders because the unsanitary and hazardous condition of the Property was so extensive that there was not even a single room or area could be promptly rendered safe enough to comply with the standards of care under the PAWS Act and Regulations.

20In addition to the evidence of Inspector Wintermute and Dr. Jackson, the Board also reviewed 173 photographs of various parts of the Property, the veterinary records of Dr. Kyle Goldie, the veterinary consult notes of Dr. Jackson, and veterinary photographs of the Dogs as well as will-say statements.

21While the appellant chose not to testify at the hearing, she did make various statements during her cross-examination of AWS witnesses in an effort to challenge their testimony. For the reasons set out below, we were not persuaded by these statements and relied instead on the clear and uncontradicted evidence of AWS.

22The appellant acknowledged that portions of the Property were unsanitary; however, she believed that the Dogs were generally living in good conditions. She stated that what appeared to be feces on the front foyer floor was in fact black paint. She stated that the soiled toilet in the middle of the room was due to an IBS incident and that she was “not so good at cleaning up”. She also denied that the Dogs lacked food and insisted that the food was in the dishwasher.

23The appellant challenged the legitimacy of the ammonia readings, of which Inspector Wintermute provided a photo, claiming that the photo “could have been taken anywhere”. She also added that there was an air purifier that was constantly running in the Property and that she would turn if off when she would leave the Property.

24The appellant alleged that AWS had moved things around in her Property, including the washer and dryer in the front foyer and the makeshift barricade she had erected to confine the dogs to certain areas of the home; otherwise the Dogs would not have been exposed to any hazards.

25Despite the appellant’s position, the extensive photographic evidence provided by the respondent, as well as the testimony of both Inspector Wintermute and Dr. Jackson, demonstrated that the conditions in the Property were extremely unsanitary. The presence of urine and feces on the floors was evident from the photographs, as was the presence of hazards on the Property, including collapsed ceilings, exposed insulation and wires, broken glass, and construction material. All of this supported a finding that the Dogs lacked proper care, access to food and water, were exposed to poor air quality due to high levels of ammonia, and there was no clean bedding or suitable resting places available to them. One dog in particular, Billy the Kid, was also clearly suffering from a tail injury and had been lacking appropriate medical care for quite some time.

26To summarize, the Board finds that the Dogs were in distress. The respondent’s photographic evidence and witness testimony established that the appellant kept the Dogs in an unsanitary, unsafe, and inadequately ventilated environment that fell short of what is required under the PAWS Act and Regulations.

Issue 1 (b) - Should the Dogs that were removed on May 1, 2024, and subject to the DTK of May 7, 2024, be returned to the Appellant?

27The respondent’s DTK stated that the Dogs would be kept in the Chief Animal Welfare Inspector’s care because it was necessary to relieve their distress and because there were reasonable grounds to believe that the Dogs may be placed in distress if returned to the appellant.

[28] The Board agrees that the Dogs would be placed in an environment causing, or leading to, distress if returned to the appellant’s Property. The respondent’s evidence demonstrated that removing the Dogs was necessary to relieve their distress. Furthermore, the appellant provided no evidence that the conditions and environment were anything other than that shown by the respondent, which is well below the minimum and acceptable standard of care required under the PAWS Act and Regulations.

29We also had no evidence from the appellant that the unsanitary and hazardous conditions had been remedied in any way. In fact, the appellant stated in her closing submissions that she was willing to clean up the house and was willing to rent out a room in her home to get the money to do so, which suggested that this work had yet to be completed.

30The Board is not convinced by the appellant’s argument that she would clean the Property, especially where there was insufficient evidence to demonstrate she had taken steps to do so. The state of the Property, as evidenced in the photographs provided by the respondent, was such that a mere “clean up” of the premises would be insufficient to alleviate the situation. The appellant provided no evidence that she had taken any concrete steps to address the outstanding issues.

31Furthermore, Billy the Kid suffered from a chronic pre-existing tail injury which had not been treated before AWS’ involvement, as evidenced by the severity of the wound which required two surgeries. The Board is not convinced that the appellant would provide proper veterinary care to the Dogs should they be returned. The unsanitary conditions of the Property could very well cause further complications.

32The Board finds there were reasonable and warranted grounds for the DTK and that the Dogs would be returned to a situation of distress as the conditions which led to their removal and the DTK have remained unchanged.

33The Board therefore dismisses the appeal of the DTK of May 7, 2024, and declines to order that the Dogs be returned to the appellant.

Issue 2 - Should the SOA, dated May 22, 2024, for $6,424.05, be confirmed, revoked, or varied?

34The Board finds that the costs incurred by AWS were reasonable and necessary and confirms the SOA.

35AWS has the initial evidentiary burden to show the costs in the SOA were reasonable and necessary, and the Board finds that it met this burden.

36The SOA included the costs of boarding both dogs for 17 days, transportation costs, food costs, and veterinarian costs, including those related to two surgeries for Billy the Kid. The SOA was supported by detailed invoices for the boarding, treatment, and care. We find that the SOA reflects items that were necessary and reasonable.

37The appellant requested that the SOA be revoked/varied but did not provide any evidence supporting her request.

38The Board finds that the removal of the Dogs was necessary due to the Dogs’ distress and the removal resulted in the provision of necessaries to relieve the distress.

39In her closing statement, the appellant agreed that the surgeries for Billy the Kid were necessary and stated that she had “no problem” with the cost of the surgeries.

40The appellant did not argue or file any evidence of her financial circumstances or lack of ability to pay.

41Therefore, the Board was not persuaded that the SOA should be reduced as the appellant did not provide any basis for varying the SOA.

42For these reasons, the Board confirms the SOA in the amount of $6,424.05.

ORDER

43Pursuant to the powers of the Board under s. 38(9) of the PAWS Act, the Board:

1. Dismisses the Appellant’s appeal of the NOR;

2. Dismisses the Appellant’s appeal of the DTK;

3. Confirms the SOA dated May 22, 2024, in the amount of $6,424.05; and

4. Orders the Appellant to pay $6,424.05 to the Minister of Finance.