CITATION: Bevan v. Ontario Society for the Prevention of Cruelty to Animals, 2007 ONCA 119
DATE: 20070223
DOCKET: C43937
COURT OF APPEAL FOR ONTARIO
BORINS, MACPHERSON and JURIANSZ JJ.A.
B E T W E E N :
ROY BEVAN
Donald R. Good
for the appellant
Appellant
- and -
ONTARIO SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
Kenneth C. Hill
for the respondent
Respondent
Heard: February 14, 2007
On appeal from the judgment of Justice Kenneth Langdon of the Superior Court of Justice dated June 20, 2005.
MACPHERSON J.A.:
A. INTRODUCTION
[1] Section 14 of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 (the “OSPCAA”), authorizes an inspector to remove an animal from a building or place if a veterinarian has “examined” the animal and advised the inspector in writing that the health and well-being of the animal necessitates its removal.
[2] Dr. Terry Fisk, a veterinarian, signed a Certificate of a Veterinarian relating to several animals (sixteen sheep and two horses) on Roy Bevan’s farm in Holstein, Ontario. An inspector then signed a Notice of Removal relating to these animals.
[3] The sole issue on the appeal is whether Dr. Fisk’s “examination” of the animals on the Bevan farm was sufficient for purposes of s. 14 of the OSPCAA.
B. FACTS
(1) The parties and the events
[4] Roy Bevan is a farmer on Grey County Road 9 near Holstein. In July 2003, there were sixteen sheep, two miniature Shetland horses, and many chickens on his farm.
[5] Mr. Bevan first had dealings with the Ontario Society for the Prevention of Cruelty to Animals (the “Society”) a year earlier, in June 2002. Jennifer Bluhm, a Society inspector, went to the farm in response to a complaint the Society had received. She made an order under s. 13 of the OSPCAA for the stalls to be cleaned, a veterinarian to assess the farm animals, and the horses’ hooves to be trimmed.
[6] A year later, on July 2, 2003, Inspector Bluhm returned to the farm and made four orders. She authorized a full herd assessment of the sheep by a veterinarian, including examination for internal and external parasites, and recommendations by the veterinarian relating to shelter (shade), methods of confinement, and feeding. She also authorized a full health examination by a veterinarian of one Shetland horse. Mr. Bevan decided to appeal these orders.
[7] On July 25, 2003, Inspector Bluhm returned to the farm, accompanied by a local veterinarian, Dr. Terry Fisk. Dr. Fisk proceeded to examine the animals on the farm. In his testimony at the hearing before Langdon J., he described the examination he conducted in this fashion:
Q. And can you tell us how you first came to be involved in this case involving Mr. Bevan’s animals?
A. I received a call from Agent Bluhm regarding the situation and agreed to meet her at his premises on the 25th of July 2003.
Q. And who was there when you arrived at the farm?
A. Well, Agent Bluhm went to the house, then knocked on the door and there wasn’t any response so then she asked me to come in and come over the locked gate and I did so and we went and looked at a ram that was – was tethered and while we were examining that animal Mr. Bevan appeared on the scene.
Q. Can you describe the situation of the animal that you were examining?
A. He was tethered, or tied, it was a feeder with a small piece of plywood with a tire on it that was to supply him with shade and I believe there was a small water bucket there as well.
Q. And what was your impression seeing the sheep tied in that situation?
A. It’s not normal. Sheep should not be tied. They’re not meant to be tied or tethered.
THE COURT: Sorry?
THE WITNESS: They’re not meant to be tied or tethered. Sheep are meant to be running loose, have access to the field or wherever they happen to be.
MR. HILL: Q. Did you make any observations about that sheep specifically? Did you have an opportunity to examine it?
A. Yes, I did examine it and it was extremely thin. It had extremely heavy wool coat as well. Like I said it was July so it was very hot.
Q. Were you able to observe any other sheep on that occasion on that farm?
A. Yes, there were a number of sheep in the yard area. Most of them were grazing or attempting to graze the grass in that field or that area around the house and the barn.
Q. And could you tell anything about their condition at that time?
A. They were again, they all had heavy wool coats. They hadn’t been shorn or hadn’t shed their wool and were extremely hungry. They were attempting to graze even though the grass was very, very short. I described it as golf course length grass.
THE COURT: Pardon?
THE WITNESS: I described it as golf course length grass.
MR. HILL: Q. Were you able to observe any other animals on the property?
A. Just from a distance as we were just getting ready to go and look at the horses, Mr. Bevan appeared on the scene.
Q. What happened when Mr. Bevan arrived?
A. He asked us to leave the property.
Q. So I take it that you and Agent Bluhm then left the property?
A. Yes, we did.
Q. And I’m showing to you a copy of Exhibit 11. I’d ask you to look at that, it’s headed “Certificate of Veterinarian”?
A. Yes.
Q. And do you recall that document?
A. Yes, I signed that document.
Q. What was the purpose of signing that document, completing it, as you understood it at the time?
A. The purpose of signing the document was to have the animals removed from the premise because I felt that they were under distress.
Q. Can you advise the Court as to the factors that were in your mind at the time that led you to that conclusion?
A. I didn’t see adequate food for them; water was an issue. There was just, I believe we just found one bucket or one pail of water. The length of the hair coats or the wool coat of the majority of the animals. They were tatted, manure had gathered around the backs of some of the sheep. The premises was very cluttered with debris, machinery, implements, et cetera. The majority of these sheep had horns. My concern was that they could in fact become entrapped or caught in machinery with these horns and suffer injury to themselves. I just, I felt in general that they weren’t being properly cared for and I didn’t feel that this was a healthy environment for animals to be in at this time.
[8] Inspector Bluhm and Dr. Fisk left the property in compliance with Mr. Bevan’s demand. Dr. Fisk signed a Certificate of a Veterinarian stating:
I have on this day July 25/03 examined the following animal(s):
All animals kept at 184266, Cty Rd. 9, R.R. # 2, Holstein
IN MY OPINION
(a) The health and well-being of this/these animal(s) necessitates removal of the animal(s) to a proper place where the animal(s) can be provided with food, care and/or treatment, in order to relieve the animal(s) from distress.
[9] Later the same day, Inspector Bluhm returned with two more inspectors, two O.P.P. officers, and a truck and two employees from a transport company. They entered the property and removed the sixteen sheep and two horses. Inspector Bluhm then signed a Notice of Removal.
(2) The legal proceedings
[10] Mr. Bevan appealed both the July 2, 2003 compliance order and the July 25, 2003 removal order. The appeal was heard by the Animal Care Review Board over the course of fourteen days in late 2003. In a decision released on December 24, 2003, the board upheld, with minor variations, the compliance order. The board also affirmed the removal order:
Agent Bluhm had a legitimate basis for issuing the Notice of Removal under paragraph (c) of 14(1), that is, non-compliance with her July 2, 2003 Order. According to Agent Bluhm’s and Dr. Fisk’s observation on July 25, 2003, the debris had not been removed, there was no evidence of adequate water, adequate shelter had not been provided for all of the sheep, and the appellant had not provided her with the requested veterinarian’s written report. In short, there had been no substantial, if any, compliance with the Section 13(1) Order of July 2, 2003. The Board takes compliance with Section 13(1) Orders very seriously, as it is the basis for achieving the purpose of the Act, which is to relieve an animal of its distress.
[11] Mr. Bevan appealed the board’s decision pursuant to s. 18 of the OSPCAA. Section 18(4) provides that the appeal proceeds as a new hearing before a judge of the Superior Court of Justice.[^1]
[12] Following a five-day hearing in Owen Sound, Langdon J. dismissed Mr. Bevan’s appeal. He affirmed both the compliance order and the removal order. On the main issue in the appeal, the appeal judge rejected Mr. Bevan’s contention that the Certificate of a Veterinarian signed by Dr. Fisk was a false document because Dr. Fisk examined only one of the sixteen animals. The appeal judge concluded that Dr. Fisk’s examination was “a sufficient examination” and, accordingly, his certificate was not “in any way a false document.”
[13] Mr. Bevan appeals Langdon J.’s decision.
C. ISSUE
[14] The sole issue on the appeal is: did the appeal judge err by concluding that Dr. Fisk’s examination of the animals at the Bevan farm was a sufficient examination to ground a removal order under s. 14 of the OSPCAA.
D. ANALYSIS
[15] The appellant contends that the Certificate of a Veterinarian was a false document. In the document, Dr. Fisk affirmed that he had examined all of the animals at the Bevan farm. In fact, the appellant asserts, he had actually examined only one tethered sheep. He had not examined the other fifteen sheep, the two horses or any of the chickens at the farm.
[16] The appellant contends that Dr. Fisk’s examination was insufficient to ground a removal order. He submits that to examine something implies that one observes carefully or critically, which, in this case, would mean a ‘hands‑on’ assessment of the animals.
[17] I do not accept that, in the context of a statute whose stated object, per s. 3, is “to facilitate and provide for the prevention of cruelty to animals and their protection and relief therefrom”, the concept of examination should be defined in as narrow or pinched a fashion as that proposed by the appellant.
[18] Justice Langdon responded to the appellant’s proposed definition of the statutory words “to examine” in this way:
The requirement for the veterinarian “to examine” the animal does not invariably require a physical, hands-on examination of every single animal. What constitutes an examination will vary according to the circumstances of the case. For instance, a veterinarian might not need to examine even one animal “hands-on”, if he saw a herd trapped in an enclosure that was subject to be flooded such that the animals might drown. In determining what examination occurred, I will not refer to Dr. Fisk’s observations of the animals later on the same day. Clearly the statute speaks to an examination before removal. The examination is sufficient if the veterinarian has personally made observations that lead him reasonably to conclude that the health and well-being of the animal necessitates its removal. In making this decision, it is not unreasonable for the veterinarian to take into account reliable information that he or she has already received, for instance, from the Society’s inspector. Nevertheless, the fundamental aspect of the examination is that it must include the personal observation of the veterinarian. [Emphasis in original.]
[19] I endorse this analysis, which, in my view, is grounded in a proper respect for the object of the statute, fairness to the interests of animals and their owners, and common sense. Bearing in mind that a veterinarian may have to deal with large herds of animals or flocks of fowl in distress, or with difficult or dangerous animals, it is unreasonable to require a ‘hands-on’ examination or visual inspection of each animal about which the Society has a concern.
[20] I also agree with the appeal judge’s assessment of the evidence in this case. The appeal judge took into account a number of factors, including Dr. Fisk’s close examination of one sheep, his visual observation of the condition and behaviour of the remaining sheep, the conditions in which he could see the animals being kept, the reliable information he had concerning the animals on the farm, previous orders that had not been complied with, and Mr. Bevan’s interference with the examination. This led Dr. Fisk to the conclusion that the environment in which all the animals were kept was unhealthy, the animals were not properly cared for, and, therefore, their removal was necessary. The appeal judge determined that Dr. Fisk’s conclusion was reasonable. I agree.
[21] For these reasons, I conclude that the appeal judge did not err by concluding that Dr. Fisk’s examination of the animals at the Bevan farm was a sufficient examination to ground a removal order under s. 14 of the OSPCAA.
E. DISPOSITION
[22] I would dismiss the appeal.
[23] The respondent is entitled to its costs of the appeal which I would fix at $5,000 inclusive of disbursements and G.S.T. The appellant is entitled to offset this amount by the $2,500 costs order he obtained by successfully resisting the respondent’s motion to quash the appeal.
RELEASED: February 23, 2007 (“SB”)
“J. C. MacPherson J.A.”
“I agree S. Borins J.A.”
“I agree R. G. Juriansz J.A.”
[^1]: The Society cross-appealed, successfully, with respect to some of the financial components of the board’s order relating to the care of the animals after they were removed from the farm. These costs are not a part of this appeal.