Appeal under s. 38 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13.
Between:
Aylin Rossenova
Appellant
and
Chief Animal Welfare Inspector
Respondent
DECISION AND ORDER
Adjudicator: Susan Clarke, Vice-Chair
For the Appellant: Aylin Rossenova, Self-Represented
For the Respondent: Jason Kirsh, Counsel Bailey Wintermute, Regional Supervisor (client), Animal Welfare Services
Heard by Videoconference: May 27, 2025
OVERVIEW
1Aylin Rossenova, the Appellant, owns a Sih Tzu dog named Milo, aged approximately 13 years old. She appeals an order issued by Animal Welfare Services (AWS) for a dental procedure to be performed on Milo.
2On March 12, 2025, AWS Inspector Nigel Blakeborough attended the Appellant’s property, having been advised by Milo’s veterinarian that Milo had untreated severe dental disease. Following an inspection, Inspector Blakeborough issued an order pursuant to s. 30 of the Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13 (the PAWS Act) on the Appellant.
3The Appellant appealed the order, and a case conference was held on March 28, 2025. AWS Regional Supervisor Bailey Wintermute attended the case conference and revoked the order for the purpose of issued a new order. The March 12, 2025, order is not the subject of this hearing.
4On April 4, 2025, AWS Regional Supervisor Wintermute issued an order to the Appellant (the “Order”), pursuant to s. 30 of the PAWS Act. The Appellant appealed the Order on April 7, 2025 pursuant to s.38(1) of the PAWS Act.
5The Appellant does not dispute that Milo has dental disease but appeals the Order as she has obtained a second medical opinion that the procedure ordered is not necessary. She believes that Milo is not in distress, and that she should have autonomy to make her own decisions regarding the care of Milo. She was particularly concerned that because Milo is a geriatric dog, putting him under anesthesia for a full dental assessment (as ordered by Inspector Wintermute) presents a risk. The Respondent submits that Milo is in distress because he has been diagnosed with dental disease, and needs medical attention to relieve his distress, which includes having a dental assessment under anesthesia, and procedures determined as necessary by the veterinarian during the assessment.
6The hearing proceeded before the Animal Care Review Board (Board) as a videoconference format hearing.
7At the conclusion of the hearing, I gave my decision orally to the parties, with reasons, and advised that more fulsome written reasons would follow (which are contained herein). This was because an order is not stayed under appeal, and the compliance date of the Order under appeal was the next day, May 28, 2025.
PRELIMINARY and/or PROCEDURAL ISSUES
Appellant’s Motion to testify.
8The Appellant made a motion to testify, despite not having included a witness statement in her disclosure to the Respondent, as required by Rule 9.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (the Rules). The Respondent consented to the Appellant testifying, provided the Appellant restricted her testimony to the grounds of appeal in her Notice of Appeal to the Board.
9I ruled that the Appellant could testify, provided her testimony was limited to evidence related to the grounds of appeal in her Notice of Appeal to the Board.
Appellant’s Motion to include Chelsea MacDonald as a witness.
10The Appellant made a motion to include Chelsea MacDonald as a witness, even though the Appellant’s disclosure did not include a witness statement from Ms. MacDonald, as required by Rule 9.2.
11The Respondent objected because it had not had prior notice of the Appellant’s witness’ testimony, and therefore no opportunity to prepare for it.
12After hearing submissions from the parties, I dismissed the motion and did not allow Chelsea MacDonald to testify. At the case conference for this matter on April 22, 2025, witness statements were ordered to be provided in disclosure by May 13, 2025.
13The Appellant did not provide a witness statement for Ms. MacDonald. I denied the motion to include the witness as it would have been unfair to proceed without the Respondent being able to adequately prepare for her testimony.
Appellant’s Motion to include Dr. Matthew Croskery’s letter as an exhibit.
14The Appellant made a motion to include a letter from veterinarian Dr. Matthew Croskery as an exhibit but was not calling him as a witness.
15The Respondent did not object to admitting Dr. Croskery’s letter, because it was included in the veterinarian record which the Respondent had.
16After hearing submissions from the parties, I ruled that the letter could be admitted, but that, as the Respondent was unable to cross-examine Dr. Croskery, this might go to the weight of the statement. My reason for allowing the letter, was that there was no prejudice to the Respondent as he was already aware of the content.
ISSUE IN DISPUTE
17The issue to be decided is: should the Order issued on April 4, 2025, be confirmed, revoked, or modified?
RESULT
18For the reasons that follow, pursuant to the Board’s powers described in s. 38(9) of the PAWS Act, I confirm the Order.
ANALYSIS
19The Order issued on April 4, 2025, stated that Inspector Wintermute had reasonable and probable grounds to believe that Milo was in distress, and required the Appellant to take the following actions (as written in the Order):
- Have Milo examined by a veterinarian with special attention to:
a) Obtain and adhere to a veterinarian prescribed comprehensive dental management plan until the date of the procedure. Such plans typically include but are not limited to pain management and temporary antibiotic therapy.
b) Engage with a veterinarian to schedule full dental assessment under anesthesia, with removal of infected/non-viable teeth, subgingival scaling, supragingival scaling, and polishing of the teeth. Attend the procedure on the scheduled date and follow all treatment recommendations.
- Provide the animal welfare inspector with documentation from the veterinarian outlining the examination findings, and the treatments recommended and undertaken by the veterinarian, as well as a statement of treatments you have carried out at home according to the veterinarian’s recommendations.
20Compliance with Item 1(a) of the Order was required by April 11, 2025, at 1:00 p.m.; compliance with Item 1(b) of the Order was required by April 22, 2025, at 1:00 p.m. No date was provided for Item 2.
21Inspector Wintermute testified that on April 24, 2025, the compliance date in Item 1(b) was extended to May 28, 2025, by email.
22I find that Items 1(a) and 1(b) were necessary to relieve Milo’s distress and confirm the Order for the reasons that follow.
23Section 30(1) of the PAWS Act states the following:
An animal welfare inspector who has reasonable grounds to believe that an animal is in distress and who is able to promptly find the owner or custodian of the animal may order the owner or custodian to take such action as may, in the opinion of the inspector, be necessary to relieve the animal of its distress, which may include, without limiting the generality of the foregoing, having the animal examined and treated by a veterinarian at the expense of the owner or custodian.
24Distress is defined in s. 1(1) of the PAWS Act 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.
25Section 3 of the Ontario Regulation 444/19 (O. Reg. 444/19 or the Regulation) provides basic standards of care for all animals, including in the following, set out in subsection 3(2):
Every animal must be provided with adequate and appropriate medical attention.
26In Pryde v. Chief Animal Welfare Inspector, 2022 ONSC 6632 (Pryde), the Divisional Court agreed with the Board’s decision 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 (paragraph 52).
Milo was in distress
27I find that Milo was in distress because he had been diagnosed with dental disease approximately 2.5 years earlier and was in need of adequate and appropriate medical attention. This is supported by the medical records which indicate that Milo has periodontal disease, and by AWS Regional Veterinarian Dr. Robertson’s expert opinion that treatment was necessary, and that pain medication was insufficient to fully address Milo’s pain, and that the prescribed antibiotics would not cure the dental disease.
28Inspector Wintermute testified regarding the history of the case that led to issuing the Order under appeal, and that the ordered items were based on discussions with Dr. Robertson. Inspector Wintermute also testified that bloodwork was taken to determine that Milo was a suitable candidate for anesthesia, indicating he had no comorbidities.
29Inspector Wintermute testified that the Appellant had complied with Item 1(a) of the Order for a medical management plan and had booked the medical procedure ordered in Item 1(b) for May 28, 2025, and for that reason Inspector Wintermute extended the compliance deadline.
30Inspector Wintermute testified that an Order is not stayed by an appeal, pursuant to s. 38(13) of the PAWS Act. The ordered compliance date had been extended to May 28, 2025, which was the day following the hearing.
The treatment required in the Order is adequate and appropriate
31I find that the treatment required in the Order is adequate and appropriate, for the reasons that follow. The order for Milo required him to be assessed by a veterinarian under anesthesia, with removal of infected/non-viable teeth and subgingival and supragingival scaling and polishing of his teeth. The evidence is compelling that this treatment is adequate and appropriate medical attention to address severe dental disease which is causing him pain.
32Dr. Bruce Robertson, AWS Regional Veterinarian, was qualified as a medical expert. Dr. Robertson provided a comprehensive report in relation to Milo’s dental health. It was his opinion that Milo has significant dental disease with mobile teeth and a fractured jaw. He testified that the standard of care for the level of dental disease Milo has, requires a full dental assessment under anesthesia with removal of infected/non-viable teeth, subgingival scaling, supragingival scaling and polish of the teeth. Pain management should be a required element of the treatment plan.
33Dr. Robertson testified that he had based his opinion on a review of Milo’s medical/dental records from Oakville Animal Clinic Professional Corporation, Westoak Animal Hospital, and Oakpark Pet Hospital (Oakpark). Dr. Robertson further explained that he had considered the veterinarian dental standards of American Veterinary Dental College and World Small Animal Veterinary Association, as well as consulted with veterinarian dentistry specialists Dr. Fraser Hale, Dr. Brook Niemiec, and Dr. Sharon French. Dr. Robertson also testified he considered three veterinarian journal articles and a video of Milo provided to him by the Appellant. In my view, Dr. Robertson’s opinion was based on a thorough and comprehensive information and therefore I give it a lot of weight.
34Dr. Robertson’s expert report summarized the medical reports, and his communications with three Veterinary Dentists, which include their opinions that Milo is in distress. He states that the Veterinary Dentists agree that a dental procedure with required extractions is needed to alleviate this distress, quoting from Dr. Sharon French, Veterinary Dental Specialist:
The fact that he appears currently happy and is eating with the benefit of both the antibiotic and gabapentin does not mean he is pain free. Nor is it fair to keep him on antibiotics and pain medications for the rest of his life. It does not release us from the responsibility of providing him freedom from pain. The antibiotics have helped control infection but cannot eliminate it as the source of the infection (his teeth) remains.
Waiting for teeth to fall out is not a benign process. Owners often feel if their pet is eating then there is no pain. Owners also sometimes think that teeth falling out is not painful. Constant movement of a tooth within inflamed tissue is painful. Inflammation equals discomfort. Dogs, as we know, are incredibly adept at hiding illness and only when it is unbearable, stop eating or cry out.
35Dr. Robertson’s opinion was that Milo has significant dental disease with mobile teeth and a fractured lower jaw, and that the records he examined indicated that the severe dental disease had existed for at least 2.5 years, and that a treatment plan with extractions was first presented to the Appellant on September 30, 2022.
36Dr. Robertson’s opinion noted further that medical management of severe dental disease with antibiotics and pain management is only acceptable for a brief period, and that it may be utilized as palliation until a dental procedure can be scheduled, or to give time for a co-morbidity to be controlled before anesthesia is undertaken. He added that antibiotics and pain management is not a medically justifiable replacement for anesthetic dental procedures for moderate to severe dental disease.
The Appellant’s proposed treatment is not adequate and appropriate
37I find that the Appellant’s proposed treatment is not adequate or appropriate, as it will not address distress. The antibiotics and pain medication, while managing Milo’s condition, are only an interim measure and do not cure the infection or fully relieve his pain. Milo still requires medical attention to cure the infection, at which point his pain, and the distress, will be relieved.
38The Appellant disputed that Item 1(b) of the Order was necessary. She was concerned that putting Milo under anesthesia could put his life at risk because of his age.
39The Appellant submitted that Dr. Matthew Croskery at Oakpark agreed with her that dental surgery wasn’t necessary and that an option to surgery was to keep Milo on antibiotics and pain medication and to monitor him.
40The Appellant submitted a letter (actually a note in the medical record addressed “To whom it may concern”) from Dr. Croskery, in which on May 12, 2025, he wrote:
“This is a complicated disorder and difficult for veterinarians to mandate treatment since so many of our patients have chronic severe periodontal disease. Given the age of these patients and the possible risks of anaesthetic complications, iatrogenic fracture to the jaw when extracting teeth and the possible consequences after a prolonged anaesthesia.
When assessing Milo he is bright and alert, he is eating comfortably and can pick up treats from the ground with no discomfort. The instability in his front jaw is not repairable and its more a function of the destruction/loss of the bone from infection vs a true bone fracture. This will not be repairable via a dental procedure. Dental extractions would definitely benefit Milo, but I can’t mandate this as an absolutely necessary surgery based on how is doing clinically.”
41In reviewing the medical notes for Oakpark I note that Dr. Croskery also wrote on March 25, 2025, that it was definitely warranted to recommend full mouth extractions based on the clinical signs, radiographs, and presentation however Milo did not appear to be in severe discomfort in the exam room. In the April 10, 2025, clinic visit, the medical records note that Milo doesn’t like manipulation of his mouth but that he is able to move his jaw and there is instability without obvious discomfort. It also states, “patient does have severe periodontal disease however in private practice unfortunately we do see this degree of dental disease and clients sometimes don’t have the resources however meanwhile patient has quality of life,” and “there are inherent risk of this type of surgery in a 13-year-old dog:
Cardiovascular compromise
Iatrogenic fracture to jaw
42The Appellant also stressed that as Milo’s owner, she should have autonomy to make her own decisions regarding his care.
43A review of the PAWS Act, contradicts the Appellant’s belief, as s. 13 states that every owner of an animal shall comply with the standards of care with respect to the animal, and s. 15 states that no person shall cause an animal to be in distress. She therefore does not have autonomy to choose care that falls short of relieving Milo’s distress.
Conclusions
44I prefer the evidence of Dr. Robertson to the evidence of Dr. Matthew Croskery’s brief note in Milo’s medical record. I give Dr. Robertson’s evidence more weight than Dr. Croskery’s note. While Dr. Robertson did not examine Milo, his expert opinion considered medical records from veterinarians who did examine Milo, as well as expert opinions from three Dental Veterinarians, including a Veterinary Dental Specialist, as well as his journal readings regarding treatment of dental disease. Dr. Robertson was also available for his evidence to be cross-examined, whereas Dr. Croskery was not.
45While Dr. Croskery wrote that Milo was happy and could eat and drink without discomfort, Dr. Robertson’s report indicates that Dr. Sharon French advised him that “the fact that he appears currently happy and eating with the benefit of both the antibiotic and gabapentin does not mean he is pain free”. Dr. Robertson also testified that behavioural changes due to oral pain can be vague and non-specific, and that pain rarely includes a loss of appetite.
46Dr. Croskery wrote that Milo is healthy, but that there are health risks because of his age, and that extracting teeth could fracture his jaw. Dr. Robertson’s report indicates that Dr. French wrote that Milo’s bloodwork is very good for a dog of his age and that it is likely he could live many more years. She further wrote that treatment would likely involve the removal of severely affected teeth to prevent further bone loss and potential fractures. “This can be achieved through careful surgical intervention, minimizing any risk, and ensuring Milo’s comfort and safety throughout the procedure. Dr. Robertson testified that while there is a risk the jaw could fracture with tooth extractions, if the dental disease is not addressed, the jaw will continue to fracture.
47The Appellant submitted an article published by VetRecord, which concluded that anaesthetic-related mortality was 0.69%, and that age, obesity and a higher ASA classification score (American Society of Anesthesiologists) were factors.
48Dr. Robertson responded to the Appellant’s concern, that the risks of a geriatric dog dying under anesthesia is extremely low. He added that Milo had no medical conditions or comorbidities and was not obese. Dr. Robertson testified that in his practice of 40 years of high-risk dental procedures, comorbidities was a factor (heart and liver disease) in the loss of a single patient.
49In response to Dr. Croskery’s suggestion that Milo could continue on with antibiotics and pain medication as an option to surgery, Dr. Robertson testified that antibiotics and pain medication is not a medically justifiable replacement for anesthetic dental procedures for moderate to severe dental disease. Any delay of surgery will only lead to further degrees of dental decay and pain, as antibiotics can’t fully penetrate the disease, and with time, infection will become deeper. He advised that leaving dental disease untreated is more dangerous than intervening.
50Dr. Croskery did not submit an expert report, and provided no evidence for his opinion that treatment could be avoided by providing pain medication and antibiotics. He also did not testify at the hearing, which would have allowed for cross examination to test his evidence which was a 2-paragraph note in the clinic’s medical records.
51The Respondent relied on Dr. Robertson, who testified at the hearing, and was available to be cross-examined. His expert opinion was based on a review of Milo’s medical records, veterinarian dental standards, on consultations with three dental specialists, three veterinarian journal articles and a video of. He submitted an expert report of great length (approximately 158 pages), summarizing these.
52Rule 10.4 provides for a party to challenge the qualifications, report, or witness statement of an expert witness, providing they give notice with reasons. The Appellant accepted Dr. Robertson as an expert witness. She could have engaged an expert to provide a report contesting Dr. Robertson’s opinions, but she did not.
53I note as well that Dr. Croskery’s medical notes apparently conflict with each other. While his letter says that he can’t mandate surgery based on how Milo is doing clinically, earlier he wrote that full mouth exactions are warranted based on the clinical signs, radiographs and presentation. Also, while Dr. Croskery indicates that Milo does not appear to be in severe discomfort and eat and drink without pain, he makes no reference to Milo taking pain medication (prescribed by Westoak on March 13, 2025) and prescribed by him throughout his treatment of Milo.
54I find Dr. Robertson’s evidence compelling, that pain medication does not fully relieve pain caused by severe dental disease, nor that antibiotics will cure the disease. I accept his expert opinion, which left untreated, the dental disease will cause further bone loss and potential fractures.
55I acknowledge the Appellant’s testimony, that she believes Milo is not in distress because he is able to chew food, to play, appears happy (wagging his tail, and playing with other dogs), and has no apparent discomfort in his teeth. However, as described above in paragraphs [25] to [28], Milo is in distress because he is sick (severe dental disease), and in pain because of it. Based on Pryde, not providing Milo adequate and appropriate medical attention means that he is not receiving proper care, and as a result this also amounts to distress. Based on Dr. Robertson’s evidence, I disagree with the Appellant that Milo is not in pain, even though he is being treated with antibiotics and pain medication. I also accept Dr. Robertson’s evidence that behavioural changes due to oral pain can be vague and non-specific and that pain rarely includes a loss of appetite.
56I accept Dr. Robertson’s testimony that antibiotics will not cure Milo’s dental disease, and pain medication also will not relieve all his pain. Therefore, these medications will not relieve Milo’s distress. Based on this, I find that the Appellant’s proposal to continue with antibiotics and pain medication is not adequate or appropriate treatment, but as Dr. Robertson testified, only palliative care.
57I find that Milo is in distress because he is sick – he has been diagnosed with severe periodontal disease; this meets the definition of distress in s. 1(1) of the PAWS Act. Because Milo has not been provided with adequate and appropriate medical attention to address the disease, he is also in distress pursuant to s. 3(2) of O.Reg. 444/19, as described in Pryde. Surgery will address the periodontal disease. While both Dr. Croskery and Dr. Robertson have indicated that the jaw cannot be repaired, Dr. Robertson testified, that the procedure will prevent further degeneration of the jaw.
58Having found that Milo was in distress due to untreated dental disease, and that the ordered procedure will alleviate that distress, I confirm the Order.
ORDER
59I confirm the Order.
Released: July 3, 2025
______________________
Susan Clarke, Vice-Chair