Animal in Distress (PAWSA)

From Caselaw.Ninja


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

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

(2) No owner or custodian of an animal shall permit the animal to be in distress.
(3) No person shall knowingly or recklessly cause an animal to be exposed to an undue risk of distress.
(4) Subsections (1), (2) and (3) do not apply in respect of,
(a) an activity permitted under the Fish and Wildlife Conservation Act, 1997 in relation to wildlife in the wild;
(b) an activity permitted under the Fish and Wildlife Conservation Act, 1997 or the Fisheries Act (Canada) in relation to fish;
(c) an activity regarding agricultural animal care, management or husbandry carried on in accordance with,
(i) any standards of care or administrative requirements that expressly provide that they apply to that activity, or
(ii) if no standards of care or administrative requirements expressly provide that they apply to that activity, the reasonable and generally accepted practices of agricultural animal care, management or husbandry;
(d) a prescribed class of animals or animals living in prescribed circumstances or conditions; and
(e) prescribed activities.
(5) Subsections (1), (2) and (3) do not apply to,
(a) a veterinarian providing veterinary care, or boarding an animal as part of its care, in accordance with the standards of practice established under the Veterinarians Act;
(b) a person acting under the supervision of a veterinarian described in clause (a); and
(c) a person acting under the orders of a veterinarian described in clause (a), but only in respect of what the person does or does not do in following those orders.

[1]

Shelley Langstaff v Chief Animal Welfare Inspector, 2020 ONACRB 6 (CanLII)[2]

4. The Inspector attended the Community Center on June 1, 2020 at 11:15 am to follow-up with the Compliance Order issued to the Appellant on May 28, 2020, and the following events took place:

a. The Appellant was leaving the Community Center with Marley as the Inspector arrived. The Appellant told the Inspector that a veterinary appointment had been made for June 11, 2020. When the Inspector asked where the appointment was made, the Appellant began to walk away from the Inspector, shouted profanities at her, and refused to discuss the Compliance Order.
b. As the Appellant walked away with Marley, the Inspector observed Marley to have shallow and heavy breathing, that his legs were not bending properly, and the Appellant was pulling him using the leash. The Inspector followed the Appellant to the TTC bus shelter while the Appellant continued to scream profanities at the Inspector. The Inspector observed Marley’s gait to appear abnormal. The Inspector continued to make efforts to speak with the Appellant to obtain further information about the veterinary appointment, but the Appellant accused the Inspector of having relatives in the Community Center who were poisoning her.
c. Due to her concerns for Marley’s well-being, the Inspector requested the assistance of the Toronto Police Service (“TPS”). By the time the police arrived, the Appellant had boarded a bus, which remained stationary. Members of the TPS boarded the bus, took possession of Marley, and turned him over to the Inspector. The Appellant left the scene to an unknown location and Marley was taken to the local Humane Society to be examined by a veterinarian.
d. On June 1, 2020 at 2:40 pm, the Inspector returned to the Community Center in an effort to locate the Appellant to serve her with a Notice of Removal. The Appellant was not there at that time so the Inspector left the Notice of Removal with a staff member and asked that it be provided to the Appellant upon her return.
e. Once Marley was examined by the Humane Society’s veterinarian, he was transferred at the veterinarian’s recommendation to the Animal Emergency Hospital, where he was admitted overnight for monitoring. He was returned to the local Humane Society on the morning of June 2, 2020.
f. On June 2, 2020, Marley was taken to the MacKay Animal Hospital at 421 Dundas Street, Whitby, for examination. The veterinarian at that hospital, Dr. Punniamoonthy, DVM, called the Inspector to advise that Marley was not doing well, and that x-rays could not be taken because he was anxious. She was concerned that he was still showing signs of dehydration and recommended that he be taken to the Emergency Hospital for overnight monitoring. Marley was admitted there for three days before being returned to the local Humane Society. Over the course of the three days, Marley received diagnostic testing and long-term treatment recommendations.
...

13. Pursuant to section 31(1) of the Act, “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, (c) an order respecting the animal has been made under section 30 and the order has not been complied with.

14. Having found that there were reasonable grounds for issuance of the Compliance Order under section 30 of the Act, the Appellant was required to comply with its terms and conditions. One such term was to have Marley examined by a veterinarian by June 1, 2020 at 12:00pm. The Compliance Order clearly indicates that failing to comply with all the terms of the Compliance Order by the specified date may result in the removal of the animal who is the subject of the order.

...

21. The Board finds that the Inspector had reasonable grounds to believe that Marley was in distress based on her observations of Marley’s living conditions and physical condition, the Appellant’s admissions that she was not feeding him or providing him with water, and the veterinarian’s diagnoses and treatment plan, and therefore lawfully issued a Compliance Order on May 28, 2020.

22. The Board finds that the Appellant did not comply with the May 28, 2020 Compliance Order and that Marley’s removal from the Appellant’s care was necessary to relieve Marley’s distress.

23. Finally, the Board finds that Marley should not be returned to the Appellant for the following reasons:

a. There is no evidence on this appeal that the Appellant is willing and able to provide the ongoing care that Marley requires in light of his recent diagnoses; and
b. The evidence before the Board suggests that Marley would be placed in distress if he was to be returned to the Appellant.

[2]

McGreal v. Chief Animal Welfare Inspector, 2021 ONACRB

[38] Section 1(1) of the Act defines “distress” as “a state of being” when an animal is:

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.

[39] I find that the nine horses removed on July 12, 2021 were in distress, supported by testimony and evidence that the definition in its entirety has been met.

...


[53] Section 31(1) authorizes an inspector to 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 where:

a) A veterinarian has advised the inspector in writing that alleviating the animal’s distress necessitates its removal; and
c) An order respecting the animal has been made under section 30 and the order has not been complied with.

[54] I find that the removal of the horses was warranted because both conditions of Section 31(1) authorizing removal were met. First, the veterinarian advised the Inspector in writing that removal of the horses was necessary to relieve them of their distress. Second, the Compliance Order had not been fully addressed by the appellant on the date of their removal.


[3]

Pryde, Spottiswood and Pierce v Chief Animal Welfare Inspector, 2021 ONACRB 12 (CanLII)

36. The Act defines distress as in need of proper care, water, food of shelter. I accept that both veterinarians who examined the animals found them to be generally in good health. However, the main issues before me were the length of the dog’s tethers (the care of the dogs) and the several issues regarding the dogs’ shelters and the compliance with the required standards of care in the Regulation.

37. The appellant relied on Pryor v. Ontario Society for the Prevention of Cruelty to Animals[4] for the proposition that distress cannot be speculative, constructive or future distress. In that case, three stallions were removed on the basis that they might not be provided turn out or exercise. The facts of this case are different. Here the issues relating to the possible distress of the dogs are current – Does the dog house lack insulation? Is the tether too short? Is the dog shelter in good state of repair? These are immediate issues that are not future or constructive in their nature.


[5]

[4]

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 Shelley Langstaff v Chief Animal Welfare Inspector, 2020 ONACRB 6 (CanLII), <https://canlii.ca/t/j8qm2>, retrieved on 2021-04-22
  3. McGreal v. Chief Animal Welfare Inspector, 2021 ONACRB 23 (CanLII), <https://canlii.ca/t/jjml0>, retrieved on 2021-12-09
  4. 4.0 4.1 Pryor v. Ontario Society for the Prevention of Cruelty to Animals, 2015 CanLII 105971 (ON ACRB), <https://canlii.ca/t/h0p01>, retrieved on 2021-12-09
  5. Pryde, Spottiswood and Pierce v Chief Animal Welfare Inspector, 2021 ONACRB 12 (CanLII), <https://canlii.ca/t/jgkxc>, retrieved on 2021-12-09