COURT FILE NO.: 26834/15

DATE: 20151211

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

REBECCA HURLEY

Appellant

– and –

ONTARIO SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS

Respondent

Rebecca Hurley, representing herself

Brian Shiller, for the Respondent

HEARD: September 22, 23, 24, November 16, 17, and 18, 2015

JUDGMENT ON APPEAL

A.D. KURKE J.

[1] This is an appeal from the decision of the Animal Care Review Board (the “ACRB”) dated May 25, 2015, pursuant to s. 18(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36 (“the Act”).

[2] In its ruling on this case, the ACRB decided and ordered that:

a. The removal of the appellant’s horses and goat by the respondent on March 5, 2015 was in accordance with s. 14(1)(a) and (c) of the Act.

b. Lady and Tom, and the identified horses with low body condition score, shall remain with the respondent, at the appellant’s expense, until the treating veterinarian deems them healthy for return.

c. The goat and the horses deemed healthy by the treating veterinarian shall be returned to the appellant on the following conditions:

i. The appellant shall ensure that the horses must have access to water, mineral blocks and free choice good quality hay at all times.

ii. The appellant shall ensure that the horses are examined by a veterinarian for nutrition and herd management within sixty days of their return and that treatment recommendations be followed, and that a report be provided to the OSPCA with the examination findings and treatment recommendations. The appellant must comply with the treatment recommendations.

iii. The appellant shall ensure that the goat has access to water and free choice good quality hay at all times.

d. The appellant shall pay the respondent’s Statement of Account in the amount of $17,389.61 owing up to April 21, 2015.

e. The appellant shall also pay $213.46 per day in boarding costs and any additional expenses incurred relating to care or treatment of animals from April 22, 2015 onwards.

[3] In her Notice of Appeal filed June 9, 2015, the appellant seeks the revocation of the Orders made by the respondent, the return of 25 horses and a goat that were removed from her property by the respondent, the setting aside of any order for the costs associated with the maintenance, care or treatment of the animals by the respondent, and costs.

[4] The appellant asserts some 27 grounds of appeal that can be essentially distilled into the following:

a. The respondent made improper Orders against the appellant in bad faith between May 2, 2014 and March 5, 2015. It harassed, annoyed, and molested the appellant through its conduct towards her during this same time period, when it had a duty to work with animal owners, not against them.

b. The respondent did not have grounds to remove the appellant’s animals from her farm. It should have permitted the appellant’s animals to receive any required treatment on her farm.

c. The respondent denied to the appellant disclosure of medical reports and x-rays relating to her animals, and refused to allow her to get a second opinion about her animals from a qualified veterinarian, thereby limiting the appellant’s ability to advance her case.

d. The respondent deprived the appellant of the services of her veterinarian Dr. Good by retaining him on or about August 24, 2012. It also unfairly prevented the appellant from retaining the services of another veterinarian by retaining other otherwise available veterinarians for its own purposes.

e. The ACRB conducted the appellant’s hearing unfairly, and deprived her of the opportunity to fully present her case. It was biased against her. It did not acknowledge the efforts made by the appellant to attempt to retain a veterinarian.

f. The Orders made by the ACRB for maintenance costs to the respondent by the appellant amount to extortion. The ACRB took so long to give a ruling that it unnecessarily and unfairly caused further animal maintenance costs to the appellant.

The governing legislation

[5] The Act provides for the respondent’s agents to issue orders to owners or custodians of animals, and to remove animals in certain circumstances. As these provisions are directly at issue in this appeal, I reproduce their relevant portions here:

13. (1) Where an inspector or an agent of the Society has reasonable grounds for believing that an animal is in distress and the owner or custodian of the animal is present or may be found promptly, the inspector or agent may order the owner or custodian to,

(a) take such action as may, in the opinion of the inspector or agent, be necessary to relieve the animal of its distress; or

(b) have the animal examined and treated by a veterinarian at the expense of the owner or custodian.

(2) Every order under subsection (1) shall be in writing and shall have printed or written thereon the provisions of subsections 17 (1) and (2).

(4) An inspector or an agent of the Society who makes an order under subsection (1) shall specify in the order the time within which any action required by the order shall be performed.

(5) Every person who is served with an order under subsection (1) shall comply with the order in accordance with its terms until such time as it may be modified, confirmed or revoked and shall thereafter comply with the order as modified or confirmed.

(6) If an order made under subsection (1) remains in force, an inspector or an agent of the Society may enter without a warrant any building or place where the animal that is the subject of the order is located, either alone or accompanied by one or more veterinarians or other persons as he or she considers advisable, and inspect the animal and the building or place for the purpose of determining whether the order has been complied with.

(7) If, in the opinion of an inspector or an agent of the Society, the order made under subsection (1) has been complied with, he or she shall revoke the order and shall serve notice of the revocation in writing forthwith on the owner or custodian of the animal that is the subject of the order.

14. (1) An inspector or an agent of the Society may remove an animal from the building or place where it is and take possession thereof on behalf of the Society for the purpose of providing it with food, care or treatment to relieve its distress where,

(a) a veterinarian has examined the animal and has advised the inspector or agent in writing that the health and well-being of the animal necessitates its removal;

(b) the inspector or agent has inspected the animal and has reasonable grounds for believing that the animal is in distress and the owner or custodian of the animal is not present and cannot be found promptly; or

(c) an order respecting the animal has been made under section 13 and the order has not been complied with.

[6] Ameliorative orders and removal orders relate to animals “in distress”. “Distress” is defined in s. 1(1) of the Act as meaning “the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect.”

[7] Pursuant to s. 17(6) of the Act, the ACRB may confirm, revoke, or modify orders made by the respondent. Pursuant to s. 18(4) of the Act, an appeal from the decision of the ACRB “shall be a new hearing and the judge may rescind, alter or confirm the decision of the [ACRB] and make such order as to costs as he or she considers appropriate, and the decision of the judge is final.”

The hearing

[8] The new hearing of this matter was conducted over more than a week of court time, and I had the opportunity to consider the issues afresh, and to give the appellant an opportunity to conduct her case as fully as rules of Court and evidence permitted.

[9] At the commencement of the hearing, the appellant complained that she had not received disclosure from F.O.I. requests for material from the respondent and the police that she had made in June 2015. Sr. Inspector Lynn Michaud, lead investigator on this matter for the respondent (“Michaud”), testified that everything that the respondent had in its possession by way of disclosure had been turned over to the appellant. Requests by the appellant for animal x-rays could not be turned over as they were in the control of the veterinarian who ordered the x-rays, and not of the respondent. Likewise, the respondent did not have control over the notes or other evidence produced by the police, as those items were in the hands of police. I am satisfied with this explanation, and see nothing inappropriate in the conduct of the respondent with respect to disclosure.

[10] The appellant indicated that she wanted to adjourn the matter, to await materials from police pursuant to her request. The appellant had no idea when or if she would receive materials. Mr. Shiller, for the respondent, opposed the request to adjourn, as he had witnesses, including veterinarians, lined up to testify from several locations, and did not want to lose the opportunity to deal with the matter as soon as possible. Given that the appellant was unable to indicate to me when or if police materials might be available, I refused the adjournment request.

[11] Although the appellant styled the ACRB a party respondent on the appeal, the ACRB was struck out from the pleadings on the final day of the hearing.

The respondent’s case

Background facts prior to the Removal Order

[12] As the appeal is configured as a trial de novo, the respondent put its case in first, so that the appellant would have every opportunity to test it, and meet it with her own evidence.

[13] Inspector Tracy Lapping (“Lapping”) has been involved with the appellant’s case since February 2014. She has been working with the Ontario Society for Prevention of Cruelty to Animals (“respondent” or OSPCA”, depending on the context) since 2003, and works out of Sudbury. She was raised to the rank of Inspector in April 2015. She has dealt with 30 to 60 calls monthly for her services. Many of her cases have involved the removal of animals, including horses, that are in distress. She received training when she started, and the OSPCA has provided refresher training throughout her career. In addition, Lapping has taken many courses in the area of animal care and management.

[14] Lapping was put also forward by the respondent to offer opinion evidence in equine care and management. Lapping has worked with horses for 23 years. She is certified and has qualifications in areas relating to horse care, riding, coaching and treatment, among other things, and is a certified equine first aid instructor. She has also taught and lectured on identifying horses in distress, and equine care and management.

[15] The appellant’s concern about qualification mainly centred around her assertion that Lapping must be biased, as she worked for the respondent, and would feel bound to advance the agenda set by her superiors. Indeed, the appellant argued bias for every expert witness in this case, but in the case of Lapping, as with the others, I saw no genuine grounds for such concern. Lapping, like all of the other professionals in this case, indicated to the Court that she would offer opinions based on her own judgment, and not on what the respondent might want her to say. I found that Lapping was qualified to offer opinion evidence, and understood her duty to the Court in her capacity as “expert”.

[16] On February 9, 2014, Lapping received a tip raising concerns about the body condition and hooves of animals at 534 Case Road, Sault Ste. Marie (SSM), the appellant’s farm. She had been to that farm a couple years earlier to assist the SSM Humane Society. Lapping was aware that 11 horses had been taken from the property on a prior occasion by the SSM Humane Society and the OPP, and that charges had been laid. After the horses had been removed, Michaud had been called in to assist the Humane Society with the administrative components of an ongoing prosecution. Lapping sat in on the conclusion of that case in April 2015.

[17] To investigate the tip, on April 2, 2014 Lapping attended the appellant’s farm. The gate was closed. Lapping left an OSPCA “while you were out” door tag (“WYWO tag”) on the no-trespassing sign on the gate, with her Sudbury number on it, requesting contact from the appellant. She received no response. Her inquiries of the SSM Humane Society to find contact information for the appellant resulted in no means of contact. In cross-examination, the appellant produced to Lapping a blank door tag, with no names or contact information on it. Lapping did not recall leaving such a tag.

[18] On May 2, 2014, Lapping attended the property again. On driving up, she observed horses from the road with poor body condition, lacking fat or muscle on the back. There was a black and white pony extending his forelegs in a stance indicative of an animal in pain. The gate was closed. Again a WYWO tag was left, with an indication that failure to respond may result in more intrusive actions. Lapping this time left also an e-mail address along with her telephone number, to allow for more contact options. In total, Lapping was present for some 11 minutes at the appellant’s farm on May 2, 2014. She again did not hear from the appellant.

[19] Lapping consulted with her supervisor Michaud, and decided to apply for a Warrant under the Act the same day, on the basis that she had grounds to believe that there were animals in distress on the property. The Warrant was granted by a Justice of the Peace, and Lapping returned that same day to the property. The Warrant was entered as Exhibit 21 on the hearing. It did not have any time indicated for execution, but it did indicate that it expired that day.

[20] Lapping had police with her, and Dr. Keith Good, a veterinarian, joined her an hour later. Lapping showed the Warrant to the appellant, who was upset. Lapping quickly looked at 25 horses on the property. On the 1-9 Henneke Body Condition Scale (Henneke “BCS”), Lapping opined that the average horse rating was 2-3 out of 9, indicating poor body condition. Lapping cautioned the appellant about her legal rights, and engaged her in conversation. The appellant was cooperative, and indicated a generous nutritional plan for the horses, which raised Lapping’s concern about medical issues, as the horses were all so thin. She reasoned that if the problem was not nutritional, it must be medical.

[21] Lapping noticed that one horse, Lady, had a sticky wound on her left chin that needed cleaning, and the horse was in obvious pain. Lapping also spoke with the appellant about the horses’ hooves. The appellant advised Lapping that she had a family member who trimmed the hooves, but Lapping felt that professional trimming was required at this point.

[22] Dr. Good used a BCS scale out of 5; he did not conduct any treatment of the animals. Lapping and Dr. Good spoke together about issuing orders to rectify the animals’ distress. In the end, Lapping issued three pages of Orders, signed as well by Dr. Good as veterinarian (Exhibit 22):

a. On page 1, Orders A, B, and C required the appellant to provide proper hay at all times, to provide salt and mineral blocks, and adequate access to a dry resting area by May 5. Order D required that the appellant to collect a pooled fecal sample, and have it analyzed by May 13 to determine whether the animals’ body condition was caused by worms, and of what sort. Order E required hoof trimming of the herd by an experienced farrier by May 28.

b. On page 2 were listed 9 horses with a low BCS of 2.25, as determined by Dr. Good. These horses were all to be examined by a vet, and the appellant was to follow the vet’s treatment recommendations, and provide to Lapping proof of the consultation and the treatments undertaken. This was to be completed by May 13.

c. Lastly, on page 3, Lady’s chin wound was to be cleaned with an appropriate wound care product.

[23] The appellant explained to Lapping that Dr. Good had been her vet since 1995, but that he had ended their relationship once he was engaged by the SSM Humane Society in 2012 to take part in an investigation of her. Dr. Good had provided a letter to the appellant (Exhibit 45) indicating that his relationship with her was “suspended” until the conclusion of his work with the Humane Society involving the appellant. In any event, Lapping told the appellant that the horses were not well, and that the appellant had to get a vet, even if Dr. Good was no longer available to her.

[24] Lapping returned on May 5, 2014, and observed that the animals were being well fed. This is the one date for which Lapping specifically remembered seeing salt blocks. Lapping provided to the appellant a copy of the Equine Code of Practice, which contains recommendations and requirements for horse owners. She also revoked or modified Orders from May 2 (Exhibit 23):

a. She prepared a Revocation Order for the page 1, Orders A, B, and C of May 2.

b. Lapping amended the May 2, 2014, page 3 Order involving Lady to be ongoing. Lady’s chin had been cleaned, but was not clear of infection. Lapping told the appellant to keep cleaning it, and if it did not clear up, to see a vet.

[25] Lapping returned to the property May 16, 2014, and did a walk through with the appellant. Lady’s chin had not improved; Lapping was worried that there could be an abscess. The appellant was non-compliant with the May 2 Order to have an exam done of the nine “2.25” horses. The appellant told Lapping that she could not get a vet, as Dr. Good was not available to her. Lapping provided two Modification Orders, permitting the appellant until May 30 to have the nine horses examined by a vet, and to have Lady seen by a vet (Exhibit 24).

[26] On June 4, 2014, Lapping returned to the farm with a different vet, Dr. Rocheleau from an Espanola animal clinic, as the appellant had expressed her belief that Dr. Good was biased against her. Dr. Rocheleau assessed all of the horses, examining their eyes, teeth, and BCS. The respondent paid for Dr. Rocheleau’s examination of the horses, but he provided no treatment. The appellant had not collected the pooled fecal sample for analysis yet. She told Lapping that the horses were going to be dewormed, but Lapping explained to the appellant that simple deworming was not sufficient; it was important to know what parasite (if any) was affecting the horses, and that could only be done by analysis of a pooled fecal sample. The appellant asked Dr. Rocheleau if he could float her animals’ teeth, but he did not have time that day.

[27] Further Orders or Modifications issued June 4, 2014 (Exhibit 25):

a. Lady was to be attended to by a vet by June 24, 2014.

b. The deadline on Orders D and E from page 1 on May 2, 2014 was extended to June 24.

c. The original list of 9 hoses requiring teeth floatation was revoked; they had not yet been seen to. In its place was a list of 19 horses whose teeth were to be floated by June 24.

d. Also by June 24, the horse “Princey” was to see a vet concerning respiratory issues that had been observed by Lapping and Dr. Rocheleau.

e. Free choice hay – baled hay which was accessible at all times to the horses – was to be provided to all horses by June 6.

[28] Michaud testified and explained that her work puts her in charge of officers in the North Region. Accordingly, she oversaw the investigation involving the appellant as it was ongoing. Michaud spoke with the appellant June 15, 2014, and was told by her that she was having trouble finding a vet. Michaud advised the appellant that she could get Dr. Rocheleau for the appellant. The appellant did not agree or disagree, but was concerned about OSPCA involvement, and preferred to find a southern Ontario vet. The OSPCA had paid for Dr. Rocheleau to examine the appellant’s herd on June 4. Michaud heard nothing further from the appellant about vets until January 2015.

[29] On June 25, 2014 Lapping reattended the appellant’s farm to check compliance and serve another extension. As on every other occasion when Lapping could not gain admittance and meet with the appellant, she left a WYWO tag. She did not hear back. The same thing occurred on July 2, 2014.

[30] Michaud learned from the appellant that the appellant had secured the services of veterinarian Dr. DeLuna, who was supposed to see the appellant’s horses in late August 2014.

[31] On July 9, 2014, Lapping sent out another set of modifications of prior orders, extending the compliance time on all matters to July 31, 2014 (Exhibit 28). Lapping knew that the appellant had been in contact with Michaud, and believed that the appellant was cooperating.

[32] On July 10, the appellant e-mailed Lapping, asserting that the horses were gaining weight in pasture, and that they had all been dewormed the prior month. “Hooves were ongoing”, as needed. On July 28, the appellant advised Lapping by e-mail that Dr. Deluna was coming to her farm on August 28 or 29 for the floating of the horses’ teeth.

[33] On September 16, Lapping heard from the appellant’s husband that the vet had not attended in August 2014, because of an emergency. Lapping asked the appellant by e-mail to what date the appointment had been rescheduled. The appellant was not forthcoming with a rescheduled veterinary appointment.

[34] On October 1, 2014, Lapping reattended the appellant’s farm. The appellant showed her around. Lapping noted an improvement in the animals, which she attributed to their being on pasture. She spoke with the appellant again about the horses’ hooves. It was apparent to Lapping that Lady really needed veterinary care; the sore on her face was weeping and emitting a very foul odour.

[35] After speaking with Michaud, Lapping intended to return to the appellant’s farm on October 8, but she got diverted to other assignments. She sent extensions of the outstanding Orders, dated October 19, to the appellant by registered mail, extending the Order deadlines to October 31 (Exhibit 32). Lapping went by the appellant’s farm on October 29, 2014, but not finding anyone there, left a WYWO tag on the “no trespassing” sign on the closed gate.

[36] In an e-mail of November 3, 2015 the appellant claimed that she was still trying to contact the vet, and that hoof trimming was ongoing. The following day, November 4, Lapping e-mailed the appellant that she was in breach of an OSPCA Order, and that she wanted to meet with the appellant the following day.

[37] On November 5, 2014 Lapping visited the farm. The animals were on pasture and were in decent body condition. Unfortunately, it appeared to Lapping that the grass had been eaten down; the pasture appeared spent. Grass was normally easier for horses to chew and digest than hay. Lapping expressed to the appellant her concerns about the horses’ body condition on winter hay.

[38] The appellant was still trying to get a vet to come up from southern Ontario. Lapping told the appellant that the horses’ teeth had to be dealt with. Dental problems appeared to be causing body condition problems. Lapping was also worried that Lady’s wound remained, and was foul and moist. She felt that a tooth was abscessed. Lady was even then in distress, but was still gaining weight, so Lapping did not want to remove her from her owner.

[39] After speaking with her superiors, Lapping issued further extensions of orders, dated November 24, by registered mail (Exhibit 34). Regarding most of the outstanding Orders, Lapping extended the time of compliance to January 5, 2015. However, Lady had to be seen within five business days. If Dr. DeLuna could not do it, then the appellant had to find another vet. The pooled fecal sample still had to be taken; as Lapping had explained to the appellant, simple deworming was not good enough, or compliant. The availability of free choice hay remained an important Order, as Lapping believed that the pasture was spent or soon must be.

[40] Lapping tried unsuccessfully to meet with the appellant on December 19, 2014. Since November 5, she had heard nothing about vet services from the appellant. Lapping also met a closed gate on January 5, 2015.

[41] In January 2015 the appellant contacted Michaud and indicated that she could not get a vet, and asked if she could still get Dr. Rocheleau. Michaud tried to assist; the appellant had questions about whether there could be a “herd rate” for the horses, whether there would be additional costs for sedation, and the vet’s ability to extract teeth if necessary. Michaud forwarded the appellant’s request to Lapping for follow-up.

[42] Lapping received a quote for the services of the Espanola Animal Hospital (Exhibit 13), where Dr. Rocheleau was based, on January 23, 2015, and forwarded a copy to the appellant for her review. She received no response. Concerning the appellant’s question as to whether sedation was included in the cost set out, Lapping testified that she had never understood that sedation was an extra cost for that service, but she apparently did not respond to the appellant’s question. Indeed, there seems to have been an ongoing issue of the appellant contacting various numbers, e-addresses, and personnel of the respondent, to the extent that many times Lapping was uncertain whether her supervisors may have spoken to the appellant.

[43] On January 30, 2015, OSPCA patience was finally wearing thin. Lapping issued a further extension to the appellant by registered mail; the appellant would have five days to comply with all Orders (Exhibit 36).

[44] On February 7, 2015 Lapping observed that the appellant had only then signed for and collected the January 30 documents, which had been sent by registered post. By e-mail of February 10, the appellant asked Lapping for the January 2015 quote for dental services from the Espanola Animal Hospital. Lapping forwarded another copy.

[45] On February 18, 2015, by e-mail, Lapping demanded that the appellant advise her about when a vet was scheduled to attend, as the OSPCA Orders had expired.

[46] On February 25, 2015, Lapping obtained an OSPCA search warrant for the appellant’s property, which was valid through March 4, 2015.

[47] Lapping executed the warrant March 2, 2015; the delay was due to the press of other matters. Lapping noted a marked weight loss throughout the appellant’s herd. The horses’ spines and hips were discernible, and their rumps were tented rather than round, creating “negative cavities”. In Lapping’s opinion, all the animals had dwindled to a 2-3 rating on the 9 BCS scale that she employed.

[48] All of the animals’ water was frozen; Lapping observed no heaters in the troughs working to keep the water defrosted. Water is essential for horses in the winter, and snow is no substitute. Horses require about 10 gallons of water per day. Lapping also observed no hay for the group of 19 horses in one paddock. While Inspector Lapping had learned from the appellant that the appellant’s husband Albert trimmed the horses’ hooves, as did two other people, the horses’ hooves were all in poor condition, and had not apparently been recently trimmed. Lady’s wound was still presenting, and Lady’s and “Tom”’s hooves were irregular. A horse in the barn had no hay, and was himself soiled, and housed in a soiled stall.

[49] At various times through this ongoing investigation, the appellant had complained to Lapping about the difficulties in securing a new veterinarian. Lapping did her best to assist, by issuing extensions of the Orders from as far back as May 2014, and by attempting to assist with the quote from Dr. Rocheleau in January 2015. But Lapping’s position on things had been clear: as a horse owner, the appellant had a duty to have her animals properly cared for by a veterinarian, when and as necessary. Inspector Lapping had spoken with the appellant repeatedly about the need for her to get a vet to look at and treat the horses.

[50] On March 3, 2015, the appellant and a friend called the telephone number on Lapping’s business card, and left voicemail messages about getting a vet. Lapping only learned this sometime afterwards, as that telephone number was one that Lapping did not use. Her correct number was the one on the many WYWO tags that she had left for the appellant.

March 5, 2015: the appellant’s horses are removed

[51] Lapping consulted with her superiors, and obtained a new warrant, with which she returned to the property on March 5, 2015, with veterinarian Dr. Robertson assisting her. Michaud was also present at the execution of the warrant. There was a tractor running in the driveway, although Lapping did not know the reason for it. From the appellant’s case, it appears that the tractor was generally used by the appellant to bring hay and water out to the horse paddocks.

[52] When OSPCA personnel attended the appellant’s farm on March 5, the possibility that they would have to remove animals was contemplated, as it was essential to have trucks and trailers available to move animals if necessary. Lapping had secured personnel and trailers for the removal ahead of time. Michaud testified that in determining whether to remove animals because of distress, the respondent’s agents rely on their own observations and the vet’s views. She denied the appellant’s suggestion that a decision had already been made to seize the animals prior to March 5, 2015, although the possibility of removal was there.

[53] Inspector Nicole Driscoll (“Driscoll”), an OSPCA agent at the time, also attended that day, and testified at the hearing. She had worked for the respondent since 2007 as an agent, and was promoted to Inspector in March 2015. Her role was to make observations, and obtain pictures and videos of the animals and their living conditions.

[54] On arrival at the site, Driscoll donned bio-security coveralls and cleaned her leather boots at a bootwash set up by the OSPCA for its agents to ensure that nothing was tracked onto or off the premises. It was a cold day. Driscoll estimated the temperature to be some -20 degrees C.

[55] The horses were in the same condition that Lapping had observed on March 2, 2015. Dr. Robertson did a quick physical examination of all of the horses, including an assessment of their teeth and BCS.

[56] In his testimony, veterinarian Dr. Bruce Robertson described that on March 15, 2015 he examined the appellant’s animals, assessed them for distress, considered their living conditions and ascertained whether previous orders had been complied with.

[57] Dr. Robertson received his Doctor of Veterinary Medicine in 1994, and has practiced, mainly as a veterinarian, since then. He studied for a graduate certification in dairy health management in Guelph between 2003 and 2005, and is currently a graduate student in Veterinary Forensics at the University of Florida. Since 1994, Dr. Robertson has focused on large animals, to the point where his 90-95% of his practice focused on farm animals. He has dealt with thousands of horses in that practice. An injury unfortunately caused Dr. Robertson to have to shift more into consulting and equine rehabilitation, and away from general clinical duties. Dr. Robertson was qualified on this hearing to offer opinion evidence in the area of large animal veterinary services.

[58] Dr. Robertson produced a report in March 2015 that has been entered as Exhibit 14 on this hearing. Of the 27 animals that he dealt with on March 5, 2015 at the appellant’s farm, he determined that 26 were in distress, and he signed an OSPCA Veterinarian’s Certificate of Removal for them (Exhibit 15). A Removal Order is not Dr. Robertson’s preferred course. Where possible he prefers to allow owners to alleviate animal distress without removal.

[59] Prior to examining the animals, Dr. Robertson was advised by OSPCA personnel about pre-existing Orders involving the appellant’s animals. There had been dental concerns, and some concerns regarding the body condition of the animals. Dr. Robertson attended with OSPCA members and police, who were present to keep the peace in what could be difficult circumstances. He was on the premises for some three hours.

[60] Dr. Robertson first examined the horses in the paddock where 20 animals were housed. These examinations were simply triage, and not at all equivalent to an ordered examination. A handler would catch the horses and Dr. Robertson would examine them individually, “hands on”. He examined their eyes, mouths, hooves, wounds or other issues, and observed their general behaviour and attitudes.

[61] Overall, Dr. Robertson observed that the twenty horses in the first paddock were quiet and lethargic. They had no food available, and no unfrozen water available. He observed multiple animals to be ingesting manure; where normally horses use a single area for defecation, Dr. Robertson observed manure all over, consistent with the “browsing” by animals into the manure that he observed. Dr. Robertson observed the animals to lack saliva and to have dry and dull eyes, instead of wet and glossy eyes.

[62] Given what he had been told about the animals’ body condition history, Dr. Robertson felt that their condition demonstrated chronic decline. In his report, Dr. Robertson assessed most of the horses to have a BCS well below 3 out of 5. A few were below 2. Only two horses were rated at 3, the highest score awarded in his report. Concerning the assessment of BCS, Dr. Robertson noted that it can only be done properly by palpating an animal manually. Visual inspection alone does not suffice, as hair can be deceiving.

[63] There was no food available in the paddock with 20 horses. In the winter, there must be food consistently available, and there was no indication where food might once have been, if the horses had eaten that day. The other paddock had four horses. There was hay available in it, and Dr. Robertson did not observe the same fecal scavenging that he had seen in the other paddock.

[64] Dr. Robertson did observe a wagon near the barn with 8-10 bales of hay on it. He estimated that this would have been about a week’s worth of hay for 26 horses. He stated that it did no good for the hay to be available, if it was not given to the horses. In cold weather there must always be food readily available. That he saw no hay at all in the 20-horse paddock, and the horses were browsing manure, meant to him that the horses must have been without food for some time.

[65] Dr. Robertson agreed with the appellant’s suggestion that he could not be certain that there was not hay somewhere in the paddock, but the totality of the circumstances led him to believe that the horses were not getting adequate nutrition. Dr. Robertson did not see salt blocks. If they were under the snow, as suggested by the appellant, the doctor noted that the horses had not uncovered them.

[66] The horses appeared to be dehydrated. Dr. Robertson observed frozen water troughs in both paddocks. He jumped on one to try to break the ice, but could not. He observed that snow is not a substitute for water. While the troughs were of a variety that could be defrosted with a heater insert, Dr. Robertson was unable to see whether there was any heater. Feeding into Dr. Robertson’s concerns was the fact that he only observed one horse to urinate while he was present on the farm. He saw little indication of urine spots in the snow, and what was there was dark. In his view, so little urine, and in such concentration, in combination with his other observations, indicated chronic dehydration.

[67] Dr. Robertson noted some medical issues. He was especially concerned by a halter wound behind Tom’s left ear, which appeared to be scabbing over the halter. He estimated that the wound had been there for 3-4 days. He was also very concerned about an infection in Lady’s lower left mandible. He was aware that there had been prior compliance Orders regarding the horse. There was a discharge of pus that smelled of dead flesh in that area, and Lady could not bear it to be touched. She was in distress, and needed immediate care. As well, her hooves were overgrown. Dr. Robertson encouraged that Lady be referred to someone with advanced knowledge of dentistry, capable of removing a well-seated tooth.

[68] While Dr. Robertson felt that the horses’ living environment was generally adequate, he saw no bedding for the horses to lie on. The lien-to shelter within the first paddock was not big enough to shelter animals that might want to go in and lie down. The floor was covered with old dried manure, which created a surface that could be hazardous for animals’ hooves.

[69] Dr. Robertson observed that all of the horses had dental issues. Dental floatation is mandatory on horses, although environmental and feed factors can alter how much or how often it is required. The stallion in the barn had dental disease as well, but more saliva, so he must have gotten more water.

[70] Also in the barn was a pot-bellied pig that appeared to be in good body condition.

[71] Dr. Robertson was very concerned about the goat in the barn. It was emaciated; Dr. Robertson estimated it as a 1/5 on an ad hoc BCS. Its lips were white, indicating perhaps anemia, and its hooves needed trimming. The goat, he believed, was in distress. The goat was the only emaciated animal. No breed of goat should normally be that thin. While it looked bulky in photographs, palpation revealed that the bulk was simply fur. While he has seen more overgrown goat hooves, Dr. Robertson believed that the goat’s hooves needed attention.

[72] Dr. Robertson, after consultation with Michaud, signed the Veterinarian’s Certificate of Removal. His view that all of the horses and the goat were in a chronic state of distress. This view was based on failure to provide food and water, concerns about proper care, particularly with respect to dental health issues, the wound behind Tom’s ear, the chronic abscess on Lady’s mandible, and the poor body condition and possible anemia of the goat.

[73] The appellant asked Dr. Robertson if he could take care of the horses’ teeth. He declined, as he was concerned that the appellant’s request came from desperation, and not free will. Moreover, he did not have his equipment with him. He saw her request as coming “at the eleventh and a half hour”, and not an indication of her general willingness to comply with treatment Orders. Dr. Robertson knew there were outstanding dentistry Orders. Dr. Robertson believed that a horse owner has duties to monitor her animals, note injuries, seek vet attention and reasonably follow vet advice.

[74] Dr. Robertson’s observations were confirmed also by the respondent’s agents who were present at the appellant’s farm.

[75] In what Lapping called paddock 1, the paddock with the majority of the horses, there was no food present. Lapping observed horses vigorously eating feces on the ground, dragging their teeth over fecal balls. Such teeth dragging activity Lapping had only seen horses previously engage in when they had been deprived of salt for a lengthy period, and were suddenly provided with a salt block. She observed one horse eat a fresh pile of manure, something she had never seen before. The water trough was still frozen, as it had been on March 2, and now snow covered.

[76] The horses appeared to Driscoll to be hungry and thirsty. Driscoll also observed the horses eating manure from the ground. Driscoll observed that the animal water was frozen, and she saw the horses pawing at the ground, in her view in attempts to melt the snow into a drinkable form as water.

[77] Driscoll did not observe any hay in the paddocks. Hay can come in bails, or as “flake hay”, which is a smaller bundle. While photos 30 and 31 of Exhibit 1 show pieces of what might be hay in the paddock, Driscoll would have expected to see the remains of round bails, if the animals had been properly fed. The “pack” of horses appeared to her to be tired or listless, as they did not react to the entrance of new people in the interested or fearful manner that she expected of horses. Driscoll did not observe any salt blocks in the paddocks. She proceeded to take photos and videos of the animals, their living conditions, and the surrounding area (Exhibits 1 and 2).

[78] Lapping observed that the horses were listless, and unusually, did not care that strangers were present in their paddock. They still required hoof care. Lady’s jaw needed attention, but she resisted Dr. Robertson’s attempts to examine her, apparently because of the pain it caused her to have the area handled. There was not a lot of urine staining on the ground to reflect all the horses. Lapping concluded that the horses had not been fed or watered adequately, and their body condition was poor.

[79] Many of the horses exhibited overgrown hooves, but Driscoll did not see any horses with a limping gait, or severely crippled by the overgrowth. She did not observe any animals in “immediate distress”; that is, there were no horses on the ground that could not get up.

[80] On Tom, Driscoll observed a wound behind the left ear, where it appeared that his halter had irritated through the skin. Driscoll also saw the wound to Lady’s jaw. Driscoll watched as Dr. Robertson attempted to examine the animals. The wounds appeared to cause pain when touched, as the horses seemed to try to avoid being touched in those areas.

[81] In the second paddock, to the right of the centre alley, were four more horses. Lapping observed that one horse, Trigger, was not so thin as the rest. Lapping and Driscoll both noted that there was no unfrozen water, but some hay was present in that paddock. Dr. Robertson examined the horses while Inspector Driscoll took pictures and videos.

[82] Lapping observed that the horse in the barn had been placed into a clean stall, with clean bedding, and a bit of hay. Its water was frozen.

[83] Driscoll saw in the barn the pot-bellied pig that appeared to be in good condition, although its water was also frozen, and a goat without access to food, with frozen water, and an emaciated body with spine, ribs, and hips visible, a bloated belly, and pale grey gums. Its hooves also appeared to Inspector Driscoll to be overgrown. The goat did have straw around it for it to sleep on. Michaud noted that the goat was thin, but hairy. Its water was frozen, and its hooves very overgrown.

[84] The appellant spoke with Michaud about trying to contact Dr. Rocheleau about his quote, and other things. The appellant complained to Michaud that she had tried to contact Michaud and Lapping on March 3. Michaud only discovered afterwards that messages had been left in Lapping’s provincial mailbox. The messages indicated a willingness to discuss the dental issue, and to seek the OSPCA’s help, as Dr. Rocheleau’s office insisted on scheduling through the OSPCA.

[85] Forty photos from those taken by Driscoll were entered as Exhibit “1” on the hearing. Seven videos taken by Inspector Driscoll were preserved on a USB stick, and played for the court (Exhibit 2). The videos capture the living conditions of the animals. Several show horses eating from the ground what was identified as manure by Driscoll. The videos also disclosed few spots of urine staining in the snow. There was little food showing in the videos.

[86] Dr. Robertson strongly recommended the removal of all horses and the goat, and Michaud agreed with that opinion. In Michaud’s view, the animals were suffering from chronic neglect: they had poor body condition, no water present, no hay in the paddock, and there were medical concerns about Tom and Lady. Dehydration was demonstrated by the lack of urine staining in the paddock. The horses were listless. Michaud felt that the issuance of further Orders would be useless, as the appellant had not complied with past Orders.

[87] In cross-examination, Michaud explained that she believed that the neglect at issue was chronic, from her observations and her knowledge of the history of the case. She admitted that she did not know if the animals had been fed before the arrival of the respondent’s agents. She did not check the barn for urine staining. But she did not think that the animals had recently been watered as the water troughs were frozen and covered with snow, and snow had not fallen since March 3.

[88] After consultation with the others present for the execution of the warrant, Lapping prepared Removal Orders citing lack of compliance with prior Orders and the recommendation of a veterinarian. Dr. Robertson signed an Ontario SPCA Veterinarian Certificate. Intervention was necessary to alleviate the animals’ distress. Accordingly, all horses and the goat were removed. The pig was not removed.

[89] Unfortunately, apparently by oversight, Lapping did not include two horses in the Notice to the appellant about animals that were removed (Exhibit 41). “Zephyr and “Sea Ray” were omitted from the list, but were removed anyway, and have been held in OSPCA control ever since. These two horses were, however, certified for removal by veterinarian Dr. Robertson in writing, on Exhibit 15, along with the rest of the horses and the goat.

[90] The Notice of Removal was served on the appellant before the OSPCA agents and Dr. Robertson left with the animals for the foster farms.

[91] The removal went smoothly. Driscoll assisted in putting the animals onto trailers for removal. The animals were cooperative.

[92] During the course of the removal, Inspector Driscoll observed one horse, Derby, chewing consistently off a round bale of hay for some 20 minutes. The horse had difficulty chewing, and continued eating even though its mouth seemed very dry. The animal appeared to Inspector Driscoll to be dehydrated. Once loaded, the other horses also appeared hungry, and they ate.

[93] However, in one telling incident during the loading of animals onto trailers, two mares escaped their handlers, and ran towards the barn, where the stallion was. The two mares did not seek out the stallion. Rather, they ran up to baled hay, and immediately started eating. The stallion became excited, but was controlled. All of the animals were transported to foster farms in the Sudbury area.

[94] After leaving the appellant’s farm, Dr. Robertson attended a foster farm with Tom and Lady, so that he could assist the farrier with their hooves.

[95] Driscoll helped unload the animals at the foster farm, and attended at the treatment under sedation by Dr. Robertson of the horses Tom and Lady. Lady’s jaw, and a wound behind Tom’s ear required some immediate attention. Lapping contacted farrier Doug Hurley to attend the foster farm to trim their hooves, as the two horses had to be sedated anyway to permit their wounds to be attended to. Dr. Robertson attended to Tom’s wound at the foster farm, but suggested that Lady required x-rays of her mandible and a referral for more extensive dental treatment or surgery.

[96] On March 7, veterinarian Dr. McNicoll attended and floated Lady’s teeth, under sedation. He examined her injury, and suggested that her mandible could have an abscess. A section of rotten tooth was removed from the infected area, which continued to emit a terrible odour (Exhibit 1, photo 6). Dr. McNicoll determined that Lady would have to be transported to an animal hospital in Milton for jaw surgery.

[97] On March 10, Lapping visited the horses on their foster farms, and determined that all were thin. “Trigger” was just under the ideal weight, leading Lapping to conclude that he had been the boss of paddock 2.

[98] On April 6, Lapping went with Lady to the Milton Equine Hospital, where she had surgery April 7. The rest of the rotten tooth was removed, and the cavity was dressed so that it could heal. The horse is now doing “just wonderfully”. Princey’s respiration issue seems to have cleared up without treatment, and Lapping opines that the issue may simply have been related to his poor body condition.

Evidence of farrier Doug Hurley

[99] Doug Hurley was qualified to offer opinion evidence in the area of farrier services. He shoes and trims horses’ hooves, and has been doing so for 30 years, after having completed training at the Wolverine Farrier School in the State of Michigan in 1985. He has dealt with tens of thousands of horses, and has generally practiced in northeastern Ontario. Mr. Hurley prepared a Report which has been entered as part of Exhibit 4.

[100] In general terms, a farrier exfoliates the dead sole of a horse’s hooves, ensuring that the animal can stand balanced and comfortably. Over time, a failure to trim an animal’s hooves will lead to mechanical problems: arthritis, calcification of cartilage on the side of the foot (creating so-called “side bone”), and misalignment of the bones in the foot.

[101] In the evening on March 5, 2015, Mr. Hurley attended at a foster farm to deal with two Belgian-type horses, Tom and Lady, while they were under sedation. Agents from the respondent and veterinarian Dr. Robertson were also present. Mr. Hurley observed Tom to be severely limping as he was brought into the barn from the transport trailer.

[102] Mr. Hurley noted that those two horses’ hooves were extremely overgrown. He removed approximately 2-3 inches of hoof, and “sculpted” the feet. Normally, the removal of 1/4” to 3/8” would be a lot. The hoof overgrowth indicated to him that it would have been at least four to six months since their last trim. Hooves should be trimmed every 4-6 weeks in the summer, and every 6-8 weeks in the winter.

[103] Because the horses’ toes had grown so long, they generated excess pressure on the animals’ feet, causing hoof wall separation at the toe of the hooves. The toe of the hooves was being pushed up, causing a breakdown in the integrity of the hoof. The overgrowth had also caused deformities in the “white line” of the hoof. The horses’ heels were also contracted, which can cause excess pressure on the coffin bone, which in turn can cause the potential development of side bone.

[104] Tom’s hooves are shown in Exhibit 1, photos 32-36. Mr. Hurley described Tom’s feet as “a mess”. Tom’s heels had collapsed and turned inward, causing pressure on the structures in Tom’s feet that were still causing the horse problems at the time of the hearing. Tom had developed side bones. He had pressure rings around his feet, which should not be there. In cross-examination, Mr. Hurley denied that these could have been fever or feed rings, which looked different. He observed old abscesses, and severe side bones. Mr. Hurley has worked to remedy Tom’s hoof problems over time, as a quick fix was not possible. It has taken many trimmings to attempt to recover Tom’s heels.

[105] Mr. Hurley trimmed the hooves to a normal shape, which should release pressure on the toes of the hoof and the whole limb. He had concerns for the animals, as the hooves had been in such a bad state, and he recommended that the horses not be set to any task other than simply walking.

[106] On March 9, 2015, Mr. Hurley attended a foster farm, and trimmed the hooves on 14 horses. On March 10, 2015, he trimmed the hooves on the remaining 9 horses, and the goat. He observed that the hooves on all the horses were overgrown to varying degrees, and that they were all due for hoof care. He removed lots of heel and toe growth. Mr. Hurley noted that someone had been trimming the hooves on these horses, but that this person had been trimming the hooves in an unusual pattern, one that could cause further mechanical problems: the heel was left excessively high and too far forward, and the toes were left too long. This was not done in a way that a farrier would have done it.

[107] Mr. Hurley has followed up with all of the horses in this case, tending to their hooves every six weeks. In general, it takes two to four trims to “change hooves’ minds”, and correct issues that have developed from poor hoof care.

The evidence of Dr. McNicoll

[108] Veterinarian Dr. Carl McNicoll offered evidence about the body condition, teeth, and overall health of many of the horses that were removed from the appellant’s farm. He was qualified to offer opinion evidence in the area of equine veterinarian medicine. Dr. McNicoll earned his doctorate in Veterinary Medicine in 2008, and then worked mainly with horses from then until 2013, when he shifted his practice to small animal care. Over the course of time, he has dealt with more than 10,000 horses as a veterinarian, attending to almost all horse-care issues except for the most specialized.

[109] Sometime in January 2015, Dr. McNicoll was asked by Lapping about getting a quote for floating the teeth of 19 horses in SSM. Exhibit 13 is that quote, in the amount of $3,135, which price would include sedation. It was hoped by Dr. McNicoll and Dr. Rocheleau, who prepared the quote from the Espanola Animal Hospital, that the work could be done on the farm, without removal. However, any appointments were to be booked through the OSPCA. Dr. McNicoll was told by the agents that the quote was not accepted.

[110] Dr. McNicoll prepared two reports with respect to the animals that were removed from the appellant’s residence: one dated March 27, 2015, and the other dated April 2, 2015 (Exhibits 12(a) and (b)). He examined and treated the animals for the OSPCA over the course of several weeks beginning March 7, 2015, two days after their removal. He physically examined the horses, noting problems with them, conducted dental examinations and “floated” the horses’ teeth, and assessed them for their BCS.

[111] “Floating” is the process of filing down a horse’s teeth to remove sharp or uneven points and edges. It must be done so that animals can chew their food efficiently. If it is not done, the edges can cut the animal’s cheeks, and lead to poor chewing, poor digestion, and weight loss. In general, floating should be done yearly.

[112] The “body condition score” (BCS) is a scale out of 5, in general use by veterinarians. It permits an assessment of an animal’s body size, in order to assist in considering an animal’s nutrition and condition.

[113] Dr. McNicoll observed that Lady had a BCS of 1.5 out of 5, indicating that she lacked body condition and muscle. Her spine was prominent and she was hollow in her hindquarters, indicating low fat stores. In his opinion, such a low score indicated a chronic condition of at least a year’s duration.

[114] Lady continued to have a “draining tract” in her mandible, likely caused by a tooth abscess of long-standing, that had led to an infection. Such an abscess would have been painful, especially since it appeared to derive from June 2014. Lady reacted against inside palpation of the infected area. Unresolved, the issue could lead to a pathological fracture in her mandible, which would likely require her to be put down. Dr. McNicoll sedated Lady, so that he could examine her mouth and float her teeth, to give her some relief. For the infection in the mandible, Dr. McNicoll had to refer Lady to a Milton animal hospital, where she could be properly assessed and treated, as there is no clinic in northern Ontario capable of dealing with her mouth problem, and it could not be treated in the field.

[115] In general, concerning the horses that he examined, Dr. McNicoll observed that they had a low BCS. The animals he initially examined, close to the time of removal, had BCS scores generally of 2 or below, with sharp teeth that required floating, and cheek abrasions from chewing. The animals appeared to have low body fat. In the winter, horses should have a BCS of 4 or 4.5, so that they are “fat and happy” in the cold. Anything below 3 is of concern, and the animal would have to be removed from a cold environment. A horse that is too thin would present as such to its owner. Thus, for example, the ribs of the horse in photo 20 of Exhibit 1 should not be visible.

[116] In Dr. McNicoll’s view, horses that don’t have food will resort to eating manure, but only occasionally.

[117] Dr. McNicoll examined the ponies some weeks after removal. They all presented to him at 2/5 BCS, and they had had time to bulk up before he saw them. They all had sharp teeth, and three of them exhibited cheek abrasions. None of them appeared emaciated. Dr. McNicholl examined a further group shortly before noting them up in his April 2, 2015 Report. Their BCS was higher, for the most part, given the time that had passed since removal, though all of them had sharp teeth that needed floating, and most had cheek abrasions. In Dr. McNicoll’s opinion, the sharpness on the animals’ teeth indicated that they had not been floated for more than a year.

[118] If he had been present on March 5, 2015, Dr. McNicoll would have recommended removal of the animals from the appellant’s farm. The condition of the animals when he viewed them after removal caused Dr. McNicoll to believe that nothing had been done to correct matters on the farm, though the owner had been given the opportunity to do so. He viewed the herd as being in chronic distress, if not immediate distress.

Past and ongoing costs

[119] Exhibit 52 was tendered into evidence through Sr. Inspector Michaud. It represents a summary of the costs attributable to farrier costs, food, board, and delivery charges for the animals. The OSPCA does its best to minimize costs. Thus, one of the foster farms used by the OSPCA charges a flat rate of $600 per month, no matter how many animals were placed there, although the OSPCA was required to provide food and staff. The OSPCA itself pays for these line items with money raised by fundraising, as it receives no government support except for investigations. If the costs are not paid, the animals will be adopted out at a low fee.

[120] The updated Statement of Cost totaled $66,998.62 for the twenty-five horses and one goat removed by the respondent from the appellant’s farm on March 5, 2015. Boarding costs for the animals grow currently at the rate of $184.50 per day in total, according to information provided in the Exhibit.

The appellant’s case

Evidence of Dawn Moore

[121] The appellant called as a witness her friend Dawn Moore, who also assisted her in the courtroom on November 17 and 18. Ms. Moore has been going to the appellant’s ranch for some twenty years. She helped a lot around the ranch, with bathing, feeding and grooming the animals. She has been around horses since the age of seven, and has attended at various stables throughout her life. Ms. Moore attended the ranch several times a week over the years. She helped out with trail rides, sleigh rides, hayrides, weddings, and various other events.

[122] She has never seen the appellant to be neglectful or abusive of her horses. She never saw any of the appellant’s animals to be emaciated. After some brief hesitation, Ms. Moore stated that she would not say she had seen the appellant’s animals to be underweight. Ms. Moore agreed that the appellant has a duty to be aware of her animals’ medical issues.

[123] Ms. Moore knew that the OSPCA had issued Orders involving the appellant, and agreed that the OSPCA had extended the appellant’s deadlines for compliance on many occasions.

[124] Concerning the general demeanour of the appellant’s horses, Ms. Moore stated that they would generally come check out a stranger in the paddock, by “swarming” them. They were very friendly and interested.

[125] She has observed the appellant to feed her horses 3 or 4 times a day, and to refill their water troughs regularly from a hose or using large buckets that she transports by tractor. The appellant dewormed and deloused her animals twice per year. Exhibit 63 is an invoice for deworming medicine from May 29, 2014. Salt blocks went out regularly, in the stalls of the barn.

[126] Ms. Moore testified that the horses would nose around in manure to get at food beneath.

[127] Ms. Moore observed that the appellant’s husband Albert did most of the farrier work at the ranch, although he would take the larger animals off-site to be done. Hooves were trimmed on a rotation of between 5 to 8 animals at a time. If the hooves got cracked at the corners, the horses were taken to farriers off-site. Exhibit 62 is a page of four photos showing Albert tending to horses’ hooves on December 27 and 28, 2014.

[128] Ms. Moore was aware that Dr. Good had been the appellant’s vet until the 2012 investigation, when he gave the appellant a letter indicating that he could not be the appellant’s vet any longer. The appellant gave this letter to Inspector Lapping. The appellant only called in Dr. Good for more serious matters, as she attended to smaller issues herself. She has seen the appellant treating the animals with “Blue coat” for wounds, and delousing and deworming medications.

[129] Ms. Moore, the appellant, and another friend Carol Martin all tried to find another vet once Dr. Good would no longer attend the appellant’s animals. They called all the vets in the area and even tried across the river in the United States. That effort failed, as an animal would need shots from a vet to be able to attend in the United States.

[130] They found Dr. Tai DeLuna down south. Dr. DeLuna’s appointment to attend the appellant’s animals was made for July 2014, and then changed to August 2014. Dr. DeLuna did not show up. Although the appellant tried to get her to reschedule, Dr. DeLuna did not respond after alerting the appellant that she had had to cancel because of a family emergency. If it had been up to her, Ms. Moore said that she would have let the OSPCA know right away that Dr. DeLuna had cancelled the appointment in August 2014.

[131] Other vets were involved with the SPCA or just did not want to be involved. Dr. Rocheleau attended with the OSPCA in June 2014. The appellant tried to have him float the animals’ teeth as long as he was there anyway examining the herd, but he said that he could not do it at that time. The OSPCA offered Dr. Rocheleau’s services again, but when Ms. Moore contacted his office, apparently in January 2015, she was told that arrangements would have to be made through the OSPCA.

[132] In early March 2015, prior to the date on which the warrant was executed, Ms. Moore attended the appellant’s ranch with her granddaughter. Ms. Moore and others did some feeding of animals and grooming. She saw no low-weight animals on that visit.

[133] That day, Ms. Moore groomed Tom and noticed nothing remarkable about him. He had some hair tangled around his halter, but that was all. He just needed a brushing. Ms. Moore acknowledged in cross-examination finding out afterwards that Tom had a serious wound behind his ear, as shown in Exhibit 1, photos 7-8. But Ms. Moore thought that she would have noticed the wound if it had been there that day, and Tom would have reacted to her brushing him there. Tom’s hooves were due for trimming, but something had come up that prevented it. Ms. Moore had witnessed Albert to trim Tom’s hooves in the past without any sedation; Tom never acted up, he was not dangerous.

[134] Ms. Moore testified that she thought Lady’s jaw issues were simply related to halter rub. The appellant cleaned the wound with Lysol wipes, and sprayed her chin with “Blue coat”. The wound appeared to come and go. Ms. Moore found out later that Lady had had to have a tooth removed. She agreed that the appellant should have made sure that Lady was not in pain.

[135] Ms. Moore witnessed a call by the appellant with Connie Mallory of the OSPCA, after the appellant’s animals had been seized. The appellant unsuccessfully sought Lady’s x-rays, so that she could get a second opinion. The appellant tried to find out where her animals were, but was told that that information could not be released to her, only to her vet.

[136] George the goat had a pen equipped with a shopping cart for hay, and had a water bucket readily available. Ms. Moore’s granddaughter brushed the goat. The goat was very hairy in the winter months, but shed its coat for the summer. Ms. Moore said that it would surprise her to learn that the vet said the goat was emaciated, but she agreed that the vet would know better than she would. George’s spine was not showing.

[137] Ms. Moore produced various photographs that she had taken showing baled hay on a wagon and in the animals’ paddocks. All animals were consistently given square and round bales.

[138] Ms. Moore has taken part in doing Body Condition testing on the animals. When she did it, she used a tape with measure markings on it. She did not observe Dr. Rocheleau to use such a tape when he claimed to assess BCS.

Evidence of Carol Martin

[139] Carol Martin also testified for the appellant. Ms. Martin explained that she loved animals but did not have much specific knowledge. She has known the appellant for about 5½ years. During that time, she has often been out at the appellant’s ranch. She has groomed the horses, learned some farrier work from the appellant’s husband Albert, engaged in chores on the ranch, and done trail rides there.

[140] In her teens she spent some time around a horse, and has learned about everyday horse care in her years at the appellant’s ranch. She could recognize a horse in distress if its bones were sticking out. She felt that she knew about BCS, and had done research on various horse feeds. Ms. Martin never saw the appellant to abuse horses or cause them harm.

[141] The appellant fed these horses with round and square bales of hay. The round bales were kept in a tractor in front of the barn. The square bales were kept inside. Bales were taken out to the paddock by tractor, the ropes were cut, and the hay spread out. In winter the horses also received scoops of feed in buckets hung on the fences. This was normally done twice per day. Water troughs were filled two or three times per day. Animals could also be fed in the barn, where they were brought to have their feet done. Salt blocks were left in various locations.

[142] Attempts by the appellant, Ms. Martin and Ms. Moore to secure another vet have been extensive and ongoing since Dr. Good advised the appellant that he could no longer be her vet. Exhibit 64 is a computer generated list created by Ms. Martin detailing their efforts to find a vet in the Region and out. They tried in the U.S. as well. Ms. Martin believes that the appellant has been blacklisted by vets, as a result of the OSPCA’s involvement with her.

[143] Ms. Martin called Dr. Good about Lady’s teeth, but Dr. Good indicated that he had a conflict, and suggested various alternatives, including a vet in Guelph. Dr. Good indicated that he hoped to return as the appellant’s vet, but could not until after the completion of the Humane Society matter. Dr. Rocheleau stated that he could not get involved until two years after his duties with the SPCA.

[144] The plan had been for Dr. DeLuna to attend to the appellant’s animals locally; they had hoped to find other interested animal owners, so that they could share the expense of bringing Dr. DeLuca up. When Dr. DeLuna was unable to attend, Ms. Martin and the appellant started trying to get Dr. Rocheleau through the OSPCA, from September through November 2014. Important to the appellant was the cost of having the animals’ teeth done, as the number of horses requiring attention according to the OSPCA kept increasing.

[145] On March 5, 2015, Ms. Martin was present at the appellant’s ranch. At one point, Sr. Inspector Michaud approached her and the appellant as they stood watching events, and told the appellant that she better be quiet or police would get involved. Emotions were running high, but Ms. Martin stated that she and the appellant were not doing anything boisterous. This detail was never put to any witness called by the Society, and I make nothing of it in my analysis of this appeal.

[146] Ms. Martin took many pictures that day, and several pictures of horses were put into evidence. Ms. Martin says that a few days before March 5 she had run her hands over Tom, and noticed no injuries. Tom never needed to be sedated for hoof trimming, and he let Ms. Martin lift his hooves. George the goat looked fine to Ms. Martin. He was round and fluffy, and seemed happy and lively.

[147] In the paddock, the horses were playful, and would run around. Sometimes they were nippy with one another. On hot days, Ms. Martin has seen them hanging out under trees and “chilling”. They would mostly ignore strangers in the paddock if the strangers did not have food. On March 5, Ms. Martin noticed nothing abnormal about the horses. She saw no distress; they acted as they had always acted. They didn’t seem hungrier or thirstier than normal. She saw no emaciated horses, with their bones sticking out.

[148] Ms. Martin did agree that there were horses that “could use some weight”. There were some that seemed a little underweight; when she petted them, she could feel hip bones and withers. But it was not like they were “skinny, skinny”. Inspector Lapping had explained the BCS nine point scale to her, and she did not see any signs that the horses were “starving to death”. Ms. Martin ridiculed the idea of counting horse pee spots. She thought it would be silly, especially since horses often pee in the same location.

[149] Ms. Martin explained that she did not think that the horses, including Lady, were in “that much distress” that they had to be removed. She explained, “we needed to find a vet, but could not.” Ms. Martin expressed a high standard for “distress”, when she stated that she “thought that the horses were not in danger of expiring or getting any worse.” The appellant’s concern was to raise enough money to have all of the horses’ teeth floated.

[150] When the horses were taken, Ms. Martin felt betrayed.

[151] In cross-examination, Ms. Martin agreed that Lady was not in good shape when she was removed. She agreed that the appellant had a responsibility to get a vet. In fact, Ms. Martin suggested to the appellant in September 2014, when Dr. DeLuna did not attend, that she should take the OSPCA up on its offer to get help from Dr. Rocheleau. She felt that they should do anything it took to get a vet. The appellant did send two or three e-mails to Inspector Lapping after August 28, to let her know that the appellant was waiting for Dr. DeLuna to reschedule.

[152] Although Ms. Martin called the telephone number on Inspector Lapping’s card, she agreed that it was a different phone number that was on the WYWO notices that had been left on many occasions by Inspector Lapping. Before Ms. Martin and the appellant tried to contact Inspector Lapping on March 3, they knew that Inspector Lapping had been by with a warrant on March 2.

Analysis and General Findings of Fact

[153] In the main, I have no reason to reject as incredible most of the evidence that I have received at this hearing. Generally, the witnesses appear to have been trying to tell the truth to the best of their ability.

[154] However, I find that the evidence of the respondent satisfies me, on the balance of probabilities that:

a. The appellant’s animals were properly assessed as being in “distress”, as defined in s. 1(1) of the Act, on the occasions that Inspector Lapping issued Orders to the appellant concerning them.

b. the OSPCA’s Orders between May 2, 2014 and January 30, 2015 were properly issued to the appellant with conditions designed to relieve the ongoing distress of her animals.

c. For the most part, the appellant did not take the action required by the OSPCA in the Orders to relieve the distress of the animals. In the wording of s. 14(1)(c) of the Act, “an order respecting the animal has been made under section 13 and the order has not been complied with.” In particular:

i. Orders had issued after the animals were examined by veterinarians Dr. Good and Dr. Rocheleau in May 2014 and June 2014, respectively.

ii. There is no evidence that the appellant attended to her animals’ dental needs before they were removed on March 5, 2015. This item had been the subject of Orders at least since June 4, 2014 on the bulk of the appellant’s herd.

iii. Lady’s wound on her jaw and her body condition were to be assessed by a veterinarian by Order issued June 4, 2015. There is no evidence that this was done until after her removal by the OSPCA on March 5, 2015.

iv. There is no evidence that the appellant ever took the pooled fecal sample that she had been ordered to take for analysis by the Order of May 2, 2014.

v. The horses’ hooves were to be trimmed by an experienced farrier, according to the Order of May 2, 2014. While there is some evidence before me that the horses’ hooves were cared for by the appellant’s husband prior to their removal, I have no evidence that he is an “experienced farrier”. The evidence that I do have, from an expert farrier, is that Tom’s and Lady’s hooves were in very bad shape on March 5, 2015, and that the animals’ hooves had been badly trimmed by a non-farrier.

vi. The horses that were identified on May 2, 2015 as having a low BCS were to have been seen by a veterinarian, and a treatment plan developed. There is no evidence that this was done.

d. There were overwhelming grounds on March 5, 2015 to find that the appellant’s animals were in distress, as testified to by the various participants for the respondent on that occasion.

e. Dr. Robertson, a qualified veterinarian, examined all of the appellant’s horses, goat, and pig, and advised Sr. Inspector Michaud and Inspector Lapping in writing that the health and well-being of all of the animals except the pig required their removal (s. 14(1)(a) of the Act).

f. The appellant’s animals were in a state of chronic distress on March 5, 2015, when they were removed by the respondent.

[155] While the appellant’s witnesses testified to the appellant’s good treatment of her animals, I find that the appellant’s witnesses testified more from a position of friendship than any kind of demonstrated expertise in dealing with animal care, and more by way of generalities than precise and detailed observations. In the face of the detailed observations of experienced OSPCA personnel and qualified veterinarians and an expert farrier, I find that Ms. Moore’s and Ms. Martin’s observations of the health and well-being and good treatment of the animals by the appellant must yield to the weight of the respondent’s evidence.

[156] I find that the appellant’s concerns about the refusal of the respondent to provide her with necessary disclosure fail on the uncontroverted evidence that the respondent did not have control over the material that the appellant was seeking.

[157] Contrary to the appellant’s assertion that the OSPCA deprived her of her own vet, and the services of other vets, I find that Dr. Good withdrew his services from the appellant as a result of an unrelated SSM Humane Society investigation into the appellant. I further find that the appellant recklessly allowed her animals to continue in distress by failing to avail herself of the many offers by the respondent to assist her in securing the services of Dr. Rocheleau, a qualified veterinarian. I find that the appellant’s stubbornness and resentment at the interference by the OSPCA kept her from taking the OSPCA up on its offer as early as the Summer of 2014, even when her friend Ms. Martin encouraged her to do so. The OSPCA’s attempts to assist the appellant in getting the services of Dr. Rocheleau in January 2015 were not taken up by the appellant. It was only after Lapping executed the Warrant on March 2, 2015 that the appellant tried to contact Lapping to discuss Dr. Rocheleau’s availability.

[158] Far from acting in bad faith, I find that throughout, the respondent, through Lapping and Michaud, attempted to ensure that the appellant could retain her animals, so long as she relieved their distress. Between May 2014 and January 2015, Lapping repeatedly extended the deadlines of s. 13 Orders to give the appellant time to do just that. Ms. Martin’s feeling of betrayal on the removal of the animals is indicative, I believe, of the appellant’s own refusal to acknowledge the lengths to which the OSPCA had gone to allow the appellant to retain her animals.

[159] The appellant focuses on “immediate distress” of animals as the only situation in which the OSPCA should act. Thus, she attacks Lapping for not executing the February 25, 2015 warrant until March 2, which, the appellant asserts, must tell against Lapping’s genuine concerns for the animals’ wellbeing. While such an argument might have some force if the animals were in imminent danger of demise, and Lapping chose not to enter the appellant’s farm without warrant to preserve their lives (Act, s. 11(6) and (8)), that is not the test for simple “distress” in the Act. Rather, what was documented was a chronic situation that the respondent attempted to remedy without removal of the animals from the appellant, and which the respondent remediated once the animals had to be and were removed.

[160] I note here that the appellant in her submissions on this appeal appears to conflate the conduct of the respondent in issuing Orders and removing the appellant’s horses with allegations or charges of animal “abuse” levelled against her or others. This appeal is not concerned with such allegations or charges, which are not germane to the issues that I must decide, as this Court is not configured as a criminal or Provincial Offences Act tribunal.

[161] I find that, in general, subject to deductions that must be made for Zephyr and Sea Ray, as discussed below, the costs detailed in Exhibit 52 are very reasonable, and reflect the OSPCA’s desire to minimize the costs for maintaining the animals so as not to demand exorbitant amounts from persons in the appellant’s situation. If the total seems large, it represents the continuous maintenance and care, and medical treatment of many large animals for nearly nine months.

[162] The appellant’s complaints concerning the ACRB’s consideration of this matter are statutorily overtaken by this hearing, at which the appellant has had another opportunity to have her concerns and evidence assessed. I do not see any delay in the conduct by the ACRB of the hearing that unfairly generated additional costs to the appellant. The ACRB heard the case on March 31, and April 1, 20, and 21, 2015, and issued a decision May 25, 2015.

Issues with May 2, 2014 Warrant and March 5, 2015 Notice of Removal

[163] On May 2, 2014, Lapping attended at the appellant’s farm on the strength of a Warrant issued by a Justice of the Peace, and examined the appellant’s herd with Dr. Good. The Warrant failed to state times for its execution, contrary to s. 12(3)(a) of the Act. The appellant complains about this conduct as a breach of her s. 8 Charter right to be secure against unreasonable search or seizure.

[164] On the evidence, Lapping complied with the terms of the Warrant (Exhibit 21), which on its face indicated that it expired May 2, 2014. Section 12(3)(a) of the Act permits execution of a Warrant to relieve distress “any time during the day or night”, and I have no evidence that the Warrant was executed after midnight May 2, 2014. While it would have been preferable for the Warrant to state that it could be executed between the time of issuance and midnight the same day, I see no harm occasioned by the omission of such an indication in the Warrant, in the administrative context of a provision designed to protect and regulate the welfare of animals, rather than to collect evidence to prosecute an offence.

[165] Finally, concerning the omission of the names of the two horses “Zephyr and “Sea Ray” from the OSPCA’s Notice of Removal that was provided to the appellant on March 5, 2015 under s. 14(3) of the Act (Exhibit 41), I find that the names were omitted by oversight. Those horses were named in the Veterinarian’s Certificate of Dr. Robertson, and the appellant will have been immediately aware that all of the horses had been taken, including those two. The Veterinarian’s Certificate takes away any notion of unlawful removal by the respondent of the two unlisted horses, as the Notice is not a precondition to removal.

[166] Notwithstanding those findings, the ACRB and this Court must ensure that provisions in the Act that protect the rights of animal owners are taken seriously and scrupulously adhered to by the OSPCA.

[167] In my view, the OSPCA’s failure to name Zephyr and Sea Ray on the Notice disentitles the OSPCA from reimbursement for costs incurred in the maintenance of those animals. At my request, the respondent in its submissions indicated that, from the totals calculated for maintenance of the appellant’s herd up through November 16, 2015, $2,220.31 was the amount attributable to Zephyr and $2,223.78 the amount attributable to Sea Ray. A total of $4,444.09, therefore, will be deducted from Costs owing from the appellant to the respondent for animal maintenance. The respondent further indicated that fees to maintain those two horses amounted to $7.56 per day per horse.

Ruling

[168] The ACRB’s determination at paragraph 158 of its Decision dated May 25, 2015 is confirmed, that “the appellant’s animals were removed in compliance with Section 14(1)(a) and (c) of the Act.”

[169] I make the following alterations to the Orders of the ACRB:

A. All animals belonging to the appellant that were removed by the OSPCA on March 5, 2015, with the exception of Sea Ray and Zephyr, shall remain with the respondent, at the appellant’s expense, until the treating veterinarian deems them healthy for return.

B. The goat and the horses deemed healthy by the treating veterinarian shall be returned to the appellant on the following conditions:

i. The appellant shall ensure that the horses must have access to water, mineral blocks and free choice good quality hay at all times.

ii. The appellant shall ensure that the horses are examined by a veterinarian for nutrition and herd management within sixty days of their return and that treatment recommendations are followed, and that a report be provided to the OSPCA with the examination findings and treatment recommendations. The appellant must comply with the treatment recommendations.

iii. The appellant shall ensure that the goat must have access to water and free choice good quality hay at all times.

iv. Zephyr and Sea Ray shall be returned forthwith by the respondent to the appellant, subject to conditions i, ii, and iii above, and subject to the provisions of any other outstanding Court Orders regarding the appellant’s care of animals.

[170] With respect to the respondent’s costs, I order that the appellant shall pay to the respondent $62,554.53, which represents the balance of the respondent’s Statement of Account as at November 16, 2015 (Exhibit 52) less the maintenance costs attributable to Zephyr and Sea Ray up to that same date.

[171] The appellant shall further pay to the respondent $169.38 per day in boarding costs from November 17, 2015 onwards, in addition to any expenses incurred relating to care or treatment of the appellant’s animals.

[172] If the appellant is unable to receive back Zephyr and Sea Ray because of her failure to fulfil the conditions of this Order or any other outstanding Court Order, then the respondent shall maintain Zephyr and Sea Ray in the same manner as the appellant’s other horses, and the appellant shall additionally pay to the respondent $15.12 per day for their maintenance from January 2, 2016 onwards.

[173] Concerning legal costs of this appeal, if the parties are unable to agree, they may make submissions to me in writing of no more than two pages within 30 days.

A. D. KURKE J.

Released: 20151211