Animal in Distress - By Veterinarian Advice (Re:Taking Possession of)

From Riverview Legal Group


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2024-06-13
CLNP Page ID: 2347
Page Categories: [Animal Control (POA)]
Citation: Animal in Distress - By Veterinarian Advice (Re:Taking Possession of), CLNP 2347, <>, retrieved on 2024-06-13
Editor: Sharvey
Last Updated: 2024/02/15


Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13[1]

1 (1) In this Act,

...
“critical distress” means distress that requires immediate intervention in order to prevent serious injury or to preserve life; (“détresse critique”)
“distress” means the state of being,
(a) in need of proper care, water, food or shelter,
(b) injured, sick, in pain or suffering, or
(c) abused or subject to undue physical or psychological hardship, privation or neglect; (“détresse”)

...

15 (1) No person shall cause an animal to be in distress.

...

30 (1) An animal welfare inspector who has reasonable grounds to believe that an animal is in distress and who is able to promptly find the owner or custodian of the animal may order the owner or custodian to take such action as may, in the opinion of the inspector, be necessary to relieve the animal of its distress, which may include, without limiting the generality of the foregoing, having the animal examined and treated by a veterinarian at the expense of the owner or custodian.

(2) The order shall be in writing and shall have printed or written thereon the content of subsections 38 (1), (3) and (5).
(3) The order shall specify the time within which any action required by the order shall be performed.
(4) Every person who is served with an order under this section shall comply with it 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.
(5) If, in the opinion of an animal welfare inspector, an order made under subsection (1) has been complied with, the inspector shall revoke the order and serve notice of the revocation in writing on the owner or custodian of the animal that is the subject of the order.

31 (1) An animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of providing it with necessaries to relieve its distress if,

(a) a veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal;
(b) the inspector 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 30 and the order has not been complied with.
...
(6) The Chief Animal Welfare Inspector may decide to keep an animal that was removed under subsection (1) or (2) in the Chief Animal Welfare Inspector’s care if,
(a) the Chief Animal Welfare Inspector determines it is necessary to relieve the animal’s distress; or
(b) the Chief Animal Welfare Inspector has reasonable grounds to believe that,
(i) the animal may be placed in distress if returned to its owner or custodian, or
(ii) the animal may be trained to fight another animal if returned to its owner or custodian.
(7) The Chief Animal Welfare Inspector shall immediately serve written notice of his or her decision to keep an animal in the Chief Animal Welfare Inspector’s care in accordance with subsection (6) on the owner or custodian of the animal, if known.
(8) A notice to an owner or custodian of an animal required by this section shall have printed or written on it the content of subsections 38 (1), (4) and (5).
...

44 (1) An animal welfare inspector who is lawfully in any place may, without a warrant, seize any animal or thing that he or she has reasonable grounds to believe,

(a) has been obtained by the commission of an offence under this Act;
(b) has been used in the commission of an offence under this Act;
(c) will afford evidence of the commission of an offence under this Act; or
(d) is intermixed with a thing referred to in clause (a), (b) or (c).
(2) If the animal welfare inspector is in the place pursuant to a warrant, subsection (1) applies to any animal or thing, whether or not it is specified in the warrant.
(3) An animal welfare inspector shall deliver any animal or thing that he or she seizes to a person authorized by the Chief Animal Welfare Inspector for safekeeping.
...
(6) An animal welfare inspector who has seized an animal or thing under this section shall comply with the requirements of section 158.2 of the Provincial Offences Act.
(7) Any animal or thing seized and not forfeited under this section shall be returned to the person from whom it was seized if,
(a) a charge is not laid at the conclusion of the investigation; or
(b) a charge is laid but, when the charge is finally disposed of, the defendant is acquitted or the charge is dismissed or withdrawn.
(8) Despite subsection (7), if the Chief Animal Welfare Inspector has reasonable grounds to believe that the animal may be placed in distress or trained to fight another animal if returned to its owner or custodian,
(a) the Chief Animal Welfare Inspector may decide to take the animal into the Chief Animal Welfare Inspector’s care; and
(b) the notice provisions in subsections 31 (7) and (8) apply, with necessary modifications.

R. v. C.O., 2022 ONCA 103 (CanLII)[2]

[64] Adapting the language of Lamer C.J. to the offence created by s. 215(2)(a)(i), the fault component consists of conduct which shows a marked departure from the conduct of a reasonably prudent parent in circumstances in which it was objectively foreseeable the child was in “necessitous circumstances”. That is, circumstances in which the child’s health or safety were at risk and the child was in need of protection. The requirement that the Crown prove, as part of the harm element, that it was reasonably foreseeable to a prudent parent that the child was in need of protection, dictates that there must be some foreseeable risk of harm. Foreseeable risk of harm is, therefore, integral to the fault requirement for the offences created by s. 215(2)(a).

[65] In summary, risk of harm to the child’s health or safety informs both the scope of the duty to provide the necessaries of life in a given circumstance, and the child’s need for those necessaries. Furthermore, the objective fault requirement inevitably leads to a risk assessment on the way to determining whether the accused conduct constituted a marked departure from the conduct of a reasonably prudent parent in the same circumstances.

[2]

Swanson v Chief Animal Welfare Inspector, 2020 ONACRB 11 (CanLII)[3]

Issue 2: Was the removal of the animals necessary to relieve their distress?

[41] Based on the evidence of the Inspectors and Dr. Robertson, I am satisfied that the removal of the ponies and horses was necessary to relieve their distress. Ms. Swanson had been ordered to address the hooves of Cody and Vegas but had been unable to do so by the time the search warrant was executed on October 29th. While I accept that Ms. Swanson took some steps to ameliorate the horses’ condition, including attempting to address their hooves, she conceded that she had not been able to do so even after Inspector Baker gave her ample time to do so.

[42] Having failed to properly address Cody and Vegas’ needs, it was appropriate and necessary for both the horses and the two ponies to be removed from Ms. Swanson’s care so that they could receive the care they needed. As Mr. Mack described, the animals required extensive hoof trimming, which they all received from Mr. Mack, within hours of being removed from the property.

[43] With respect to the chickens, while I accept that they were in distress, I am not satisfied that removal was necessary in the circumstances. Dr. Robertson did not inquire of Ms. Swanson whether the chickens had free range of the barn; whether they were permanently housed in their cages; and whether their water was regularly changed. Ms. Swanson made clear in her evidence that she had not had a chance to complete her morning chores prior to the execution of the search warrant. She explained that she would have changed the animals’ water and bedding and would have opened the doors and windows in the barn, making it easier for the animals to roam.

[44] Dr. Robertson acknowledged that he did not recommend the removal of all of the poultry in the barn and that he identified the six chickens that were removed based on his observations of their cage conditions. In the circumstances, I am not satisfied that removal was necessary to alleviate the chickens’ distress. Ms. Swanson was ordered to take steps with respect to several animals that were not removed, including sheep, goats, horses and other poultry. She should have been given the opportunity to address the concerns identified with respect to the chickens removed in much the same way. I am not satisfied that the condition of the chickens removed was demonstrably different than the condition of the other poultry and animals left behind.

[45] Similarly, there did not appear to be a need to remove the lame chicken on the date of removal. Ms. Swanson ought to have been given an opportunity to address its condition, before it was removed.

[3]

Manning v. Chief Animal Welfare Inspector, 2023 ONACRB 67 (CanLII)[4]

[17] Section 31 (1)(a) provides that an animal welfare inspector may remove an animal from the place where it is and take possession of the animal if a veterinarian has advised in writing that relieving the animal’s distress necessitates its removal. Section 31(1)(c) provides that an animal welfare inspector may remove an animal from the place where it is and take possession of the animal for the purpose of relieving its distress if, a Compliance Order respecting the animal has been made under s. 30 (“CO”) and the CO has not been complied with.

[18] Section 31(5) provides that an animal welfare inspector who has removed an animal under section 31(1) or 31(2) shall promptly serve written notice of his or her action on the owner or custodian of the animal, if known, and on the Chief Animal Welfare Inspector.

...

[23] I find that the removal of the dogs was necessary to relieve their distress under the PAWS Act for the following reasons.

[24] Prior to the removal of the dogs on October 19, 2023, the appellants had been made aware of the respondent’s concerns about the health of both dogs over a period of several months, yet failed to provide the appropriate veterinarian-recommended testing, treatment and continuing medication. The respondent’s Inspector Charlene Renaud testified that she had issued several CO’s to the appellants in respect of their dogs between July and October, 2023. All of the CO’s contained a written warning in capital letters that failure to comply may result in the animals being removed.

[25] The July 31, 2023 CO required the appellants by August 3, 2023 to have the dogs examined by a veterinarian with special attention to overall body condition and health assessment and special attention to skin condition, fleas, ticks, Tilly’s eye growth, to provide documentation from the veterinarian outlining the examination findings and the treatments recommended and undertaken, and to follow the treatment recommendations of the veterinarian.

[26] Inspector Renaud testified that because the appellant Dawn Manning told her that she did not understand the July 31, 2023 CO, on August 3, 2023, Inspector Renaud revoked the July 31, 2023 CO and replaced it with an order requiring the appellants by August 8, 2023 to take the same actions as the July 31, 2023 CO. An additional requirement was added that the dogs must not be moved from the appellant’s two addresses without prior notice and approval, except for veterinary care.

...

[42] Having considered the totality of the evidence before me and all submissions made by both parties, I find that the dogs cannot be returned at present as the appellants are not able to sufficiently care for the dogs such that the dogs could be returned without being placed immediately back in distress. The following are my reasons.

[4]

Ishankova v. Chief Animal Welfare Inspector, 2022 ONACRB 25 (CanLII)[5]

[61] The appellant submits that the animals never should have been removed. She complains that AWS did not ask her any questions, for example about what food she was feeding the cats or whether she had taken them to the vet. They also did not ask how long she had been living there. The inspectors admitted that they did not ask her any questions nor did they consider issuing a compliance order prior to removal, relying instead on the veterinarian certificate.

[62] The respondent submits that the circumstances surrounding the removal are irrelevant because the removal was not appealed and, therefore, must be taken to be correct. I disagree. There is a very short turn-around of 5-business days between removal and when a person has to file an appeal of that removal and there may be any number of reasons why a person may not have done so. I do not think the failure to appeal a removal should be taken as acquiescence that the removal was authorized. Even if I am wrong about that, the circumstances surrounding the removal may be relevant to AWS decisions that followed and whether a Statement of Account should be confirmed, varied or revoked. I will therefore consider this issue.

[63] In this case, I do not find that it was improper for AWS to facilitate the removal of the cats by calling Dr. Robertson without asking questions of the appellant or giving her the opportunity to take the cats to the vet herself. Although AWS had the discretion under s. 30 of the Act to issue a compliance order, I see nothing wrong with the fact that they proceeded instead to obtain a veterinarian opinion. I accept Dr. Robertson’s basis for certifying in this case that alleviating the animals’ distress necessitated their removal. I further find that he was entitled to rely on the observations and opinion of Inspector Vandenkroonenberg in coming to that conclusion.

[64] For her part, Inspector Vandenkroonenberg admitted that “about half” of her concern about the cats was based on the information she had from the U-Haul encounter where the cats were found (and admitted by the appellant at that hearing) to have been in distress. I find that it was not improper for Inspector Vandenkroonenberg to rely on that knowledge in deciding to obtain the opinion of a veterinarian as to whether the cats should be removed, rather than issuing compliance orders.


[5]

Lapointe. v. Chief Animal Welfare Inspector, 2023 ONACRB 49 (CanLII)[6]

[72] Section 31(1)(c) provides that an animal welfare inspector may remove an animal in distress and take possession of the animal for the purposes of providing it with necessaries to relieve its distress if, among other things, an order respecting the animal has been made under s. 30 and the order has not been complied with.

[73] On a plain and purposive reading of s. 31, I find that the removal of an animal based on non-compliance with a CO made under s. 30 requires that the CO itself must not have been revoked. Once it has been revoked, the CO is no longer in effect and further proceedings based on it cannot be taken. Otherwise, there would be no need for the legislature to have specified the details of compliance order procedure in the PAWS Act. I have already found that the CO was not in compliance with the PAWS Act. Here, the removal was not made because of distress but because of non-compliance with the CO. It follows that this particular removal is based on a faulty CO.

[74] I find that 22 dogs removed on April 28, 2023, plus the five puppies born to one of the 22 dogs post-removal, are to be returned to the appellant. Based on the evidence and findings set out above, the respondent did not have the right to remove the 22 dogs described in the NOR, or the 15 dogs described in the CO on the grounds of non-compliance with the CO because the CO is a nullity and has no legal force and effect, having now been revoked.

[75] Similarly, the statement of account dated April 30, 2023 put in evidence before me by the respondent, even though not appealed, is of no legal effect because it seeks payment of costs incurred by the respondent for 22 dogs after removal. I note however, that Inspector Goettling testified that after the April 30, 2023 statement of account was issued, Inspector Haaima served it on a “tenant of some sort” at the property. Inspector Goettling said that he has no record of the name of the person who was served or when. Inspector Haaima did not testify.

[76] The NOR is states that the animals have been removed pursuant to the Act based on “Section 31(1)(c): An order issued by an inspector on April 27, 2023 @ 4:12 pm.” The April 27, 2023 at 4:12 p.m. CO is now revoked. As a result, the respondent’s submission that the dogs have been forfeited must fail. There is no longer any valid legal basis for the NOR, the April 30, 2023 account, or any other account, and no forfeiture can be based on it, nor can the respondent rely on any other proceedings it has taken since the CO such as a decision to keep in care, if one has been made, as the respondent suggested in closing submissions.


[6]

References

  1. Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13, <https://www.ontario.ca/laws/statute/19p13>, reterived 2021-04-22
  2. 2.0 2.1 R. v. C.O., 2022 ONCA 103 (CanLII), <https://canlii.ca/t/jm524>, retrieved on 2024-02-15
  3. 3.0 3.1 Swanson v Chief Animal Welfare Inspector, 2020 ONACRB 11 (CanLII), <https://canlii.ca/t/jcbh9>, retrieved on 2021-04-22
  4. 4.0 4.1 Manning v. Chief Animal Welfare Inspector, 2023 ONACRB 67 (CanLII), <https://canlii.ca/t/k237t>, retrieved on 2024-02-15
  5. 5.0 5.1 Ishankova v. Chief Animal Welfare Inspector, 2022 ONACRB 25 (CanLII), <https://canlii.ca/t/jrtsr>, retrieved on 2024-02-15
  6. 6.0 6.1 Lapointe. v. Chief Animal Welfare Inspector, 2023 ONACRB 49 (CanLII), <https://canlii.ca/t/jzdc1>, retrieved on 2024-02-15