ANIMAL CARE REVIEW BOARD (“BOARD”)

In the Matter

of

Rebecca Hurley (“Appellant”)

and

the Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”)

DECISION Reference No. 2012-12

Hearing: November 5, 6 & 7, 2012; December 20 & 21, 2012, and January 21 & 22, 2013,

Sault Ste. Marie, Ontario Animal Care Review Rae Legault, Chair Board: Louise Menard, Member Appellant Represented by a friend Carol Martin Counsel for the Paula Thomas Ontario Society For The Prevention Of Cruelty To Animals:

Animal Care Review Board Ministry of Community Safety and Correctional Services 25 Grosvenor Street, 17th Floor Toronto, ON M7A 2S8

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INTRODUCTION

This is the decision of the Board with respect to the following two issues

pertaining to the care of Appellant’s horses:

1. The Shelter Issue

The first issue is Appellant’s appeal, pursuant to section 17 of the

Ontario Society for the Prevention of Cruelty to Animals Act (“Act”) of

Item 1 in an order, dated September 17, 2012, made pursuant to

subsection 13(1) of the Act (“Order”).

Item 1 of the Order states as follows:

Provide adequate shelters for all horses. For horses on continuous turn out,

one three-sided south facing shelter, at least 16 feet x 16 feet for every three

horses in each group needs to be provided for protection from fall and winter

weather by October 12, 2012.

Appellant is claiming that the natural and man-made shelters on her

property constitute adequate shelter for her horses and, therefore, Item

1 of the Order should be revoked. The OSPCA’s position is that Item 1

of the Order should be confirmed.

The issue of whether Item 1 in the Order should be confirmed or

revoked turns on whether the Order was made in accordance with

section 13(1) of the Act, that is, whether Agent Archibald’s belief that

Appellant’s horses were in distress, as defined in Section 1 of the Act,

was based on reasonable grounds at the time she issued the Order.

2. The Farrier Issue

The second matter in this decision is Appellant’s claim for an amount of

money representing the difference between the amount she paid to the

OSPCA for farrier services performed on her horses and the amount

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she would have paid had the farrier services been done by her regular

farrier. The threshold issue is whether, under the Act, Appellant is

responsible for any part of the payment of the farrier services provided

by a farrier retained by the OSPCA.

EXHIBITS

The exhibits submitted at the hearing are listed in Appendix A.

FACTS

The testimony of the witnesses set out in this decision is restricted to

evidence provided at the hearing concerning the issues of shelter and

farrier services for Appellant’s horses.

OSPCA’S WITNESSES

The OSPCA presented its case with respect to the issues of adequate

shelter and the provision of farrier services through the testimony in

relevant part of veterinarian, Dr. Keith Good, farrier, Kevin Palmer, Sault

Ste. Marie Humane Society shelter manager, Cindy Ross and OSPCA

Agent Trudy Archibald, and Inspector Clancy Martin.

Keith Good, DVM

Dr. Good has been practicing veterinary medicine for the past 29 years.

He received his DVM from the Ontario Veterinary College and was licensed

to practice veterinary medicine by the College of Veterinarians of Ontario in

1983. He works out of the Algoma Veterinary Clinic in Desbarats, Ontario.

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Dr. Good was qualified as an expert witness, and testified, in relevant part,

as follows:

He attended at Appellant’s ranch on August 24 and 29, 2012; September 7,

12 and 24, 2012, and October 3, 2012, at the request of the OSPCA.

On his visits to Appellant’s ranch August 24 and 29, 2012, Dr. Good made

the following observations and recommendations:

There were 2 stallions and a mare in box stalls in the barn. The lighting

was poor; it was quite dark. There was an accumulation of several days of

feces indicating that these horses had not been turned out on a daily basis.

There was no bedding in the stalls.

He observed 19 horses in a paddock south east of the barn, which had a

dilapidated shelter that was not functional. Thus, trees provided the only

shelter. Another paddock had 8 younger horses in it and a 12 feet x 16 feet

shelter with a tarpaulin roof. Dr. Good found this shelter to be functional

but it could only accommodate 2 horses. Another paddock had 12 horses

in it with a cluster of trees for shelter.

After examining the horses, Dr. Good found that 14 of them were severely

under conditioned with body condition scores of between 1 and 2 (on a 1 to

5 scale). He found that 17 of the horses were moderately unconditioned

with body scores of 2.25 to 2.75 and 12 had adequate body scores of 3.0

or higher.

Dr. Good’s opinion was that although the tree clusters in certain of the

paddocks would provide adequate shelter in the summer they would not be

adequate shelter in the winter, especially in this case with the generally low

body condition scores of the horses.

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Dr. Good recommended that shelters be constructed with three sides (with

the opening facing south), with a water-proof roof and an area of 16 feet x

16 feet for every three horses. Dr. Good acknowledged that his

recommendation to Appellant in 2008 specified a minimum area of 12feet x

16 feet for every four horses [exhibit 2B] and explained that the standard

has been upgraded in a more recent publication of the “Recommended

Code of Practice for the Care and Handling of Farm Animals”, published by

Canadian Agri-Food Research Council, and his present recommendation

reflects this change. Dr. Good also recommended that the turnout shelter

be at least 10 x 10 feet. In the barn, the stalls should have at least 4 x 8

feet standing room and should be kept clean, and clean bedding should be

provided daily.

Dr. Good’s findings as a result of his examination of Appellant’s horses on

August 24 and 29, 2012, are contained in his report, submitted as Exhibit 2.

Dr. Good noted that the horses generally had hoof overgrowth although not

to the point of lameness and recommended that all the horses have their

feet examined by a farrier and trimmed as needed.

Kevin Palmer

Kevin Palmer is a graduate of the Seneca College of Applied Arts and

Technology. He took a 3-month intensive farrier course in the United

States, graduating with a 91 percent final mark. He has also had farrier

training sponsored by “Jim Poor” farrier tools and equipment. The Board

qualified Mr. Palmer as an expert witness in the area of horses’ hooves.

He testified as follows:

Appellant called him on August 25, 2012, regarding trimming her horses’

hooves. Right after this call, Mr. Palmer received a call from Cindy Ross,

the Sault Ste. Marie Humane Society shelter manager, who asked him if he

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was available to come over to Appellant’s ranch and trim her horses’

hooves that day, which he did.

Mr. Palmer noted several hoof problems that needed correction. He

explained that with over length the toes get cracks and chips which could

break off leaving the hoof too short. He also explained that chips and

cracks cannot be trimmed all at one time; the correction requires 2 or 3

trims at 6-8 week intervals depending on the severity. He said that he only

took off as much as he felt safe for not hurting the horses. He

explained that if you clip so close you can go into the sensitive structures,

and also, this creates an opportunity for infection.

Mr. Palmer’s recommendation is a 6-week check and then to embarking on

a regular trimming schedule at 8-week intervals. [Exhibits 10 and 11] He

said that continuing care to maintain proper shape and condition, requires

the hooves to be trimmed every eight weeks.

Mr. Palmer described the problems of the horses’ hooves said that he had

been able to correct some of them. Two horses had a “stocking-up”

problem, but he said this condition would go away with regular exercise.

He explained that stocking up happens when a horse is not turned out to

pasture enough, that is, the horse is confined for too long. He observed

that the horse, BJ, has a really stiff hind leg. He said that this will probably

lead to stocking up, which creates circulatory problems and stiffness or

swelling occurs. This can be alleviated in BJ from more movement. He

added that BJ still had “baby” feet; they had not yet matured.

Several of the horses had “toe cracks” which requires a special type of

trimming. These are usually caused by unequal weight distribution or a

previous infection often from years of infections from the soil. They

leave an opening for bacteria. To prevent this kind of infection, the hooves

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have to be trimmed up so that the sole and frog are neat and tidy and then

the horse naturally cleans its foot.

Five or six of the horses had “horizontal cracks”, which are a sign of

infection that has been there and now gone. There is a certain amount of

pain associated with this condition and the closer the cracks are to the

sensitive structure, the deeper they go into the foot and this raises the pain

level. Mr. Palmer said that the horizontal cracks were the biggest concern

since it affected 5 or 6 of the horses, which is a high number. He said he

usually sees only one case in a herd of horses of that size. The horizontal

cracks were all about the same age; they happened about 3 or 4 months

before his present visit.

Quite a few of the horses had fever rings, which is a sign of a recent

sickness or trauma. Four horses were a concern in this regard. The

remedy requires a strong immune system, accomplished by a gradual

change to a better diet.

Mr. Palmer said that of the 41 horses, he was only able to clean up 2 of

them in one trimming and added that it was because these two horses had

been trimmed recently.

At the OSPCA’s request, he had gone back to do a follow-up check, at

which time he found two of the horses had abscesses. After this re-check,

Mr. Palmer provided a written report of the hoof problems of Appellant’s

horses and his recommendations. [Exhibit 38] He also submitted a report

of the state of the hooves of the 41 horses. [Exhibit 13] He said he was

not yet scheduled for a return visit.

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Mr. Palmer submitted 3 bills for his work [Exhibits 14A,B&C] for a total of

$1,820.00. He said he charges $40 per saddle horse and $60 per work

horse, and a rate of $80 per hour for a follow-up check.

Mr. Palmer said that he sent the letter to Appellant, dated September 14,

2012, suspending relations between his company, Kevin Palmer Farrier

Services and Appellant [Exhibit 11C] because he did not want to get

involved in any dispute between the OSPCA and Appellant. He said that

the last time he performed farrier services for Appellant was in 2004 or

2005.

Cindy Ross

Ms. Ross has been Manager of the Sault Ste. Marie Humane Society for

the past 15 years. Prior to that she was an OSPCA agent from 1998 to

2001 and an OSPCA inspector from 2001 to 2006. She testified in relevant

part as follows:

On August 13, 2012, Ms. Ross received information from an informant

regarding the condition of Appellant’s horses. Agent Archibald and

Detective John Rice of the Sault Ste. Marie Police Service were notified of

this complaint. After a visit to Appellant’s property with Agent Archibald at

which they were denied entry, Detective Rice obtained a search warrant

under the Act and on August 24, 2012, Ms. Ross attended at Appellant’s

property with Agent Archibald, Detective John Rice, Dr. Good and two

Emergency Service police officers. They searched the entire property.

Ms. Ross observed that the barn stalls had several days of manure

accumulation, no hay and dirty drinking water. There were a total of 44

horses at the ranch without nearly enough shelters to accommodate the

horses. Further, the existing shelters were inadequate and unsafe as they

were state of disrepair.

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Ms. Ross also observed that the horses were in need of farrier service,

some more so than others because their hooves had extensive cracks and

chips and were overgrown. In her Will State [Exhibit 18C], Ms. Ross said

that Dr. Good advised that a farrier be brought in immediately. In her

handwritten notes [Exhibit 18B], Ms. Ross stated that Appellant asked if

Ms. Ross if she would call a different farrier that the one Dr. Good had

recommended. On August 25, 2012, Ms. Ross spoke to Kevin Palmer,

which was the farrier Appellant had requested. She advised Mr. Palmer

that they would require a report on all the horses. Mr. Palmer told her he

was coming out later in the afternoon. In her handwritten notes for August

26, 2012, Ms. Ross reported that Agent Archibald was attending at the

property to supervise the feeding and farrier work. Ms. Ross testified that

August 30, 2012, was Kevin Palmer’s last day of trimming and that 8

horses were removed from Appellant’s property on August 31, 2012.

Ms. Ross testified that on September 12, 2012, she met with Agent

Archibald and Dr. Good to discuss Dr. Good’s recommendations. Dr. Good

provided a report, which was used as a guide in Agent Archibald’s

formulation of the order of September 17, 2012 [Exhibit 37], which Agent

Archibald served on Appellant on September 17, 2012.

In her handwritten notes for October 26, 2012, Ms. Ross reported that

Agent Archibald had served Appellant with orders.

Trudy Archibald

Agent Archibald has been an animal control officer with the Sault Ste.

Marie Humane Society for the past 13 years. She testified in relevant part

as follows:

In response to information received from an informant, Agent Archibald

made two investigatory visits to Appellant’s ranch. On the second visit, she

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was accompanied by Detective Rice. Appellant refused to allow entry onto

her property both times. Detective Rice then obtained a search warrant

and Agent Archibald attended at Appellant’s ranch on August 24, 2012,

with Detective Rice, Dr. Good, Cindy Ross and two police officers.

They first searched the barn. Agent Archibald observed two horses in box

stalls. There was an accumulation of manure in both stalls. They then

proceeded to the paddocks where she noted that the shelters as a whole

were in a state of disrepair.

She noted that the feet of the stallion, named “BJ”, were in bad shape.

Outside the barn were two horses with badly chipped hooves. In the

paddocks she noted that some of the horses had overgrown hooves and

hooves with cracks. Dr. Good advised her that the horses were in need of

farrier care. Appellant told her that Appellant’s farrier would be coming on

August 30, 2012.

Agent Archibald took 27 photographs on August 24, 2012, some of which

depicted overgrown hooves [Exhibit 27A-Z & 27AA]

On October 16, 17 and 18, 2012, Agent Archibald attended at Appellant’s

ranch with farrier, Kevin Palmer and his horse handler to do the “re-checks”

of hooves that had not been totally cleaned up when trimmed in August 25-

30, 2012. Mr. Palmer provided a handwritten report of his rechecks and

recommendations, dated October 16, 2012.

She noted that the shelters in the paddocks were, on the whole, in a state

of disrepair.

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Agent Archibald testified that she believed the horses to be in distress,

citing some of the elements of the definition such as being in need of

shelter and proper care.

On September 17, 2012, she issued a 5-page compliance order, pursuant

to section 13(1) of the Act [Exhibit 37] in line with Dr. Good’s

recommendations for the horses remaining at the farm. She said she read

the five pages to Appellant and she appeared to understand them. The

order contained the following five items.

1. Appellant was ordered to provide adequate shelter for all horses on

continuous turnout consisting of one three -sided, south facing

shelter at least 16 x 16 feet, for every 3 horses in each group.

2. Appellant was ordered to turn out the horses kept in the barn at least

once daily for a duration of 2 hours. The order stated that the turn-

out paddock should contain a south-facing, three sided shelter at

least 10 x 10 feet in area. Appellant was ordered to clean and put

down bedding in the stall while the horse is outside. Appellant was

ordered to provide a stall of at least 4 x 8 feet for any other horse in

rotation that is cleaned and bedded daily.

3. Appellant was ordered to follow the instructions in this item for feed,

salt, and fresh water with the goal of accomplish weight gain as

specified

4. Appellant ordered to follow instructions for deworming and

preventative measures regarding internal parasites.

5. This item contains the following wording. “I will return the week of

October 8-12 with Kevin Palmer (farrier) to re-check the condition of

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horses hooves. Recommendations for foot care/trimming that arise

from this re-check shall be carried out by a certified farrier within the

time frame to be determined.”

Items 2, 3 and 4 in the Order have been revoked by the OSPCA for

compliance.

On October 26, 2012, Agent Archibald issued an OSPCA Compliance

Order in respect of the 29 horses remaining at the ranch to have their

hooves trimmed 8 weeks after Mr. Palmer’s trim as per Mr. Palmer’s

recommendations in his report, “Farrier Re-Check and Recommendations”,

dated October 16, 2010 [Exhibit 38]. Acknowledging that this would have

required the trim to be made around the week following the re-check

(around October 23, 2012), therefore, this order was not issued in time for

this to be done, Agent Archibald specified an extended compliance dated of

November 5, 2012. [Exhibit 40]

Agent Archibald submitted a Statement of Costs as of October 24, 2012

[Exhibit 45], with supporting Sault Ste. Marie OSPCA Invoice showing

farrier services cost from August 25, 2012, to September 17, 2012, for a

total of $1,820.00.

Clancy Martin

Inspector Martin has been employed by the OSPCA for the past 13 years.

As a Regional Inspector, he oversees and assists agents and inspectors

with the cases they work on. He attended at Appellant’s ranch at the

request of Agent Archibald to ascertain the status of the shelters provided

for the horses.

Inspector Martin testified that to provide “adequate shelter” for horses kept

outside is to provide protection from the elements in all seasons and all

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times. After inspecting all the paddocks, Inspector Martin said that

although the tree shelters on Appellant’s ranch may protect horses during

certain times of the year, and in certain circumstances such as sunlight on

a hot day or rain falling straight down, these clusters of trees on Appellant’s

ranch would not providing adequate shelter during harsh weather.

Inspector Martin noted that there were a fair amount of needle trees, which,

he acknowledged, keep their shelter quality in all seasons. However, he

explained that for a cluster of trees to be a substantial buffer against a

driving snow and rain, the trees must range from shorter trees at the edge

where the prevailing winds enter the natural shelter to taller trees at the

back of the cluster so that there is a slope up at an angle for the wind to lift

up and pass over the trees. There was no such situation with the trees on

Appellant’s property. Inspector Martin said that if the trees are pretty well

all one height, the wind just blows through them.

After inspecting all the paddocks, Inspector Martin said that he observed

that Appellant was making a reasonable effort to repair and augment the

man-made shelters and he would be willing to work with her to satisfy the

standard in Dr. Good’s recommendations, and as ordered by the OSPCA.

He pronounced the repair work that was being done on one of the shelters

as shown in Exhibit 75L to be “fantastic”.

B. J. Kinzel

Ms. Kinzel is the Horse Handler for Kevin Palmer Farrier Services. She

testified that she assisted Mr. Palmer in the trimming of Appellant’s horses’

hooves on August 25 to August 30, 2012.

Ms. Kinzel further testified that in line with the accepted etiquette of the

trade she contacted Appellant’s regular farrier, John Munnoch, to inform

him that Kevin Palmer was rendering farrier services to Appellant’s horses

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at the request of the OSPCA and that John Munnoch agreed that Mr.

Palmer should go ahead with the work. Ms. Kinzel also said that after the

re-check by Mr. Palmer, any further farrier services would be provided by

Appellant’s farrier, unless the OSPCA called Mr. Palmer to do further

trimmings.

In cross-examination, Ms. Kinzel acknowledged that she contacted John

Munnoch and received his permission to go ahead, without consulting

Appellant.

APPELLANT’S WITNESSES

Appellant presented her case, in relevant part, through her own testimony

as follows:

Regarding natural shelter, Appellant described a thick band of trees and a

ravine on her property. She maintains that these natural shelters have

been adequate for the past 16 years and remain adequate. She submitted

photographs demonstrating that the horses can easily get under the trees.

[Exhibit 78 A-E]

With regard to man-made shelters, she acknowledged that the shelters are

in need of repair; the tarpaulin roof has blown off one of them. But, she

said that she is in the process of renovating the shelters and making

additions. She submitted photographs of the work being done. [Exhibit 75]

Appellant said her regular farriers are John Munnoch and her husband and

to corroborate this, she presented 2 bills from John Munnoch, one dated

February 17, 2012, and March 28, 2012. [Exhibit 58] Appellant said that

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John Munnoch and her husband have been trimming the horses for the

past 15 years on a rotating basis.

She said she contacted Kevin Palmer on August 25, 2012, as John

Munnoch was unavailable until August 30, 2012, and the OSPCA appeared

to be in a hurry to have the horses trimmed and she did not know the other

farrier the OSPCA had recommended and she knew Kevin Palmer to be a

good farrier. She said she asked him to come out to give her an opinion of

what needed to be done but she did not ask him to do any trimming.

Appellant said that there were 29 horses remaining on her property as

January 20, 2013.

ANALYSIS

RELEVANT LAW

Since both the “Shelter Issue” and the “Farrier issue” involve an OSPCA

order and the request for a remedy from the Board, the applicable

provisions in the Act are sections 13(1) (“Order to owners of animals, etc.”)

and 17(6) (“Powers of Board”)

Section 13(1) of the Act, provides as follows:

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.

The definition of distress in the Act is as follows: 1. (1) In this Act, . . . “distress” means the state of being in need of proper care, water, food or shelter or

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being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect;

Section 17(6) provides as follows:

17. (6) After a hearing or, with the consent of the Society and the person who issued the notice under subsection (1) or (2), without a hearing, the Board may, (a) respecting an order made under subsection 13(1),

confirm, revoke or modify the order appealed against; (b) respecting the removal of an animal under subsection

14(1), order that the animal be returned to the owner or custodian and may make an order in the same terms as an order may be made under subsection 13(1);

(c) order that the whole or any part of the cost to the

owner or custodian of an animal of complying with an order under subsection 13(1) be paid by the Society to the owner or custodian, or

(d) order that the whole or any part of the cost to the

Society of providing food, care or treatment to an animal pursuant to its removal under subsection 14(1) be paid by the owner or custodian of the animal to the Society.

In its final submission, the OSPCA relies on Regulation 60/09 to the Act, Sections 2(5) and (6)(e), which provide as follows:

2. (5) Every animal must be provided with an adequate and appropriate resting and sleeping area.

(6) Every animal must be provided with adequate and appropriate, (e) protection from the elements, including harmful temperatures,

The Shelter Issue

Agent Archibald testified that that she believed the horses to be in distress,

as the term is defined in the Act, citing the particular elements of the

definition of “being in need of shelter” and “being in need of proper care”.

The Board finds that Agent Archibald’s belief that the horses were in

distress was based on reasonable grounds at the time she issued the

Order.

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It may be argued that the horses were not in distress for lack of shelter on

the actual date the Order was issued, that is, on September 17, 2012.

However, it is the Board’s opinion that “proper care” under the definition of

“distress” includes preparing for winter with its extreme temperatures, high

winds and driving snow by constructing shelters before the ground

becomes frozen, making such construction practically impossible. The

Board, therefore, finds that Agent Archibald had reasonable grounds for

believing the horses were in distress for lack of proper care.

Appellant maintains that the clusters and bands of trees on her property

have been adequate shelter for the past 16 years and remain so. She

submitted photographs to show that the horses can get under the trees. Dr.

Good, however, maintains that trees do not provide an adequate shelter

from the elements in the late fall with its cold rains and the winter weather.

It is his opinion that spending the late fall and winter outside with only trees

for shelter would be a particular hardship for those horses with a low body

score (for instance, the “hard keepers”). Inspector Martin corroborated Dr.

Good’s opinion. He concluded from his inspection of the property that the

contour of the clusters of trees is not conducive to providing a shelter from

driving rain and snow as the wind will pass right through the trees. He said

that in his experience and knowledge, he has come to consider that

adequate shelter is shelter that protects animals at all times and in all

seasons.

The Board is persuaded by the testimony of Dr. Good and Inspector Martin

that the construction of new shelters and the repair of existing shelters, as

prescribed in Item 1 of the Order are necessary to relieve the horses of

distress due to weather conditions.

Since the Board finds that Agent Archibald’s belief that the horses were in

distress at the time she issued the Order for lack of proper care with

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respect to the lack of construction of shelters and repair of existing shelters,

the Order was made in accordance with section 13(1) and is confirmed by

the Board with some modifications.

The Farrier Issue

The following series of events led up to Appellant’s appeal of the amount

she has been charged by the OSPCA for farrier services by Kevin Palmer

to her horses.

August 24,

2012

OSPCA group searched Appellant’s property with

a warrant for horses in distress. Dr. Good

advised that Appellant’s 41 horses require farrier

services. Appellant tells Cindy Ross and Agent

Archibald that her regular farrier is scheduled to

come to trim her horses on August 30/12 - in 6

days time. The OSPCA indicates to Appellant

that they are in a hurry to get the horse’s hooves

trimmed and cannot wait until August 30/12.

Another farrier whom Appellant does not know is

recommended.

August 25,

2012

Appellant does not want to have her horses

trimmed by the farrier recommended by the

OSPCA because she does not know his work, so

telephoned farrier, Kevin Palmer, to come out to

her ranch to assess her horses’ hooves. Shortly

after, Cindy Ross, manager of Sault Ste. Marie

Humane Society telephoned Mr. Palmer and

asked him to trim all the horses’ hooves, starting

that afternoon

Aug.25-30/12 Mr. Palmer trims hooves of 41 of Appellant’s

horses.

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August 31,

2012

Some of the horses removed to custody of the

Sault Ste. Police Services.

September 1,

2012

Mr. Palmer wrote a “To Whom It May Concern”

letter recommending that the horses have their

hooves trimmed 8 weeks from the date he first

trimmed their hooves, which have taken place

between August 25-30, 2012. [Exhibit 10] This

meant that the subsequent trims would have to be

done around Oct October 22, 2012.

September 16,

17 & 18, 2012

Mr. Palmer did re-checks of some of the horses’

hooves.

3 Bills from Mr. Palmer to OSPCA submitted to

Board as exhibits: Exhibit 14A: Dated August 31,

2012: for farrier services August 25-30, 2012:

$600; Exhibit 14B: Dated August 31, 2012, for

farrier services August 25-30, 2012: $600;

Exhibit C: Dated October 41, 2012 for farrier

services from September 17, 2012: $620. Total

amount: $1,820.00

September 17,

2012

Agent Archibald served Appellant with the Order.

Item 5 on the Order says: “I will return the week of

October 8-12 with Kevin Palmer (farrier) to re-

check the condition of horses’ hooves.

Recommendations for foot care/trimming that

arise from this re-check shall be carried out by a

certified farrier within the time frame to be

determined.”

October 25,

2012

Statement of Account served on Appellant in the

amount of $13,868, which includes $1,820 charge

for Mr. Palmer’s services.

October 26, OSPCA order, dated October 26, 2012, made

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2012 pursuant to section 13(1) of the Act [Exhibit 40],

issued to Appellant to have all the horses on her

property at that time (29 horses) trimmed by a

certified farrier “as recommended by Kevin

Palmer” in his recommendation of September 1,

2012”. Agent Archibald acknowledges on the

order that since 8-week trim would have been due

[around October 22, 2012] this OSPCA order,

dated October 26, 2012, would not have been

served in time to meet that date. The compliance

on this order is November 5, 2012.

Appellant maintains that had the OSPCA allowed her to wait the six days,

that is until August 30, 2012 to have the horses’ hooves trimmed by her

farrier, John Munnoch, the bill from Mr. Munnoch would have been less

than the $1,820 bill from Kevin Palmer.

Appellant also maintains that the re-checks done on September 16, 17 and

18, 2012, by Kevin Palmer were not necessary. Since the Board has

qualified Mr. Palmer as an expert witness in the limited area of horses’

hooves and also has heard evidence in prior cases that hooves that are in

bad condition cannot be completely trimmed in one session [see for

instance David Prior v. OSPCA, December 19, 2006], the Board accepts

Mr. Palmer’s view that the rechecks were necessary.

But more importantly, since Appellant was never served with an OSPCA

order to have her horses’ hooves trimmed, she was not under any

obligation under the Act to do so. The notation in Item 5 of the Order

stating that she would return to Appellant’s ranch later on to do a re-check

with Mr. Palmer and get his recommendations at that time does not

constitute an order. Neither does Dr. Good’s advice to have a farrier

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examine the horses’ hooves and perform trims as needed, constitute an

order, since a veterinarian can only advise an animal owner as to

treatments. Only the investigating officer, in this case, Agent Archibald,

can issue a section 13(1) order. Appellant was free to make arrangements

with a farrier of her choice to carry out Dr. Good’s advice, and it initially

seemed by the fact that she contacted Kevin Palmer on August 25, 2012,

that she might have been doing this. However it soon became obvious that

Cindy Ross and Agent Archibald took complete control of the farrier

services being rendered by Mr. Palmer and Appellant had no say in the

matter, which indicated that this was not an arrangement with Mr. Palmer to

voluntarily carry out Dr. Good’s advice.

Since Appellant was not served with a section 13(1) order, she was not

legally obliged to have her horses’ hooves trimmed and therefore not

responsible for the amount the farrier’s bill.

The OSPCA issued a compliance order on October 26, 2012, ordering that

the horses’ hooves be trimmed again at approximately 8 weeks from the

initial trimming performed by Mr. Palmer during the week of August 25 to

30, 2012. The Board is confirming this order with some modifications.

DECISION

The Board orders that:

1. In respect of all Appellant’s horses remaining on her property that

are on continuous turn out, a three-sided south-facing shelter shall

be provided with an area of at least 16 feet x 16 feet for every three

horses kept in each of the respective paddocks as soon as feasible,

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23

APPENDIX A

Exhibits

1 Fax-memo from Dr. Keith Good, to Cindy Ross, Manager of Sault

Ste. Marie Humane Society with recommended feeding schedule for 8 of Appellant’s horses.

2 A & B A: Dr. Good’s veterinary report dated September 14, 2012, containing summaries with respect of the findings after his examination of 43 horses at Appellant’s ranch on August 24, 2012; and August 29, 2012, for the Sault Ste. Marie Humane Society. Includes a summary curriculum vitae. Four appendices attached: I Lab report of fecal floatation; II Individual weight estimates; body scores and Ivomec doses; III Feeding recommendations for horses with poorest body conditions. IV Report and recommendations from April 12, 2008; B: Dr. Good’s previous report, dated April 12, 2008, summarizing his findings after assessing the animals at the ranch on March 31, 2008 and recommendations at that time.

3 Certificate of a Veterinarian, dated August 24, 2012, signed by Keith Good, DVM, with respect to 3 horses, Bender, Cinder and Chase.

4 Certificate of a Veterinarian, dated August 24, 2012, signed by Keith Good, DVM, with respect to Kramer, a senior male dog.

5 Certificate of a Veterinarian, dated August 24, 2012, signed by Keith Good, DVM, with respect to 4 horses, Dora, Tyler, Lad and Babe.

6 A: Client Receipt, from Algoma Veterinarian Clinic, dated August 31, 2012, for $3,132.09; B: Client Receipt, from Algoma Veterinarian Clinic, dated September, 19, 2012, for $3,161.02; C: Client Receipt, from Algoma Veterinarian Clinic, dated September 27, 2012, for $3,476.29.

7 Report, dated September 22, 2012, regarding numerous dogs and cats examined at the Sault Ste. Marie and Region Humane Society by Doctor Gary Palmer, following their removal from Circle H. Ranch on August 24, 2012.

8 Kennel Card Reports from the Sault Ste. Marie Animal Clinic in respect of numerous animals, identified with numbers.

9 A: Invoices from Sault St. Marie Animal Clinic, dated August 25, 2012, to September 28, 2012, in respect of Kramer; B: Invoices from Sault St. Marie Animal Clinic, dated August 25, 2012, to September 2, 2012, in respect of “Circle H cats”;

10 Letter from Kevin Palmer, a Farrier, regarding trimming of certain horses’ hooves at the request of the OSPCA addressed “To Whom it May Concern” Not dated.

11 A-C A: Recommendations of Kevin Palmer regarding horses at Circle H Ranch, addressed to the Sault Ste. Marie Humane Society, dated September 1, 2012; B: Report by Kevin Palmer regarding the hooves of certain of the horses at Appellant’s Ranch; C: Letter to

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Rebecca Hurley, dated September 14, 2012, suspending relations with Rebecca Hurley regarding farrier service for the duration of Mr. Palmer’s services provided to the Sault St. Marie Humane Society.

12 No Exhibit. (The document was part of Exhibit 18 and has been incorporated into that Exhibit.)

13 Report from Kevin Palmer regarding the state of the Hooves of Appellant’s horses.

14 A,B,&C Invoices from Kevin Palmer to Sault Ste. Marie Humane Society: A: dated July 31, 2012, for $600.00; B: dated September 31, 2012, for $600.00; C: dated October 31, 2012, for $620.00.

15 A & B A: Search Warrant from Sault Ste. Marie Police Services to search Appellant’s premises, signed by a Justice of the Peace for Ontario, dated August 24, 2012, with expiration date of September 5, 2012; B: Search Warrant from the Province of Ontario North East Region to search Appellant’s premises, signed by a Justice of the Peace, dated August 24, 2012, with expiration date of 7:00 pm August 24, 2012;

16 “Production Order” under Article 487.012 of the Criminal Code, dated August 30, 2012, signed by a Justice of the Peace.

17 Report to a Justice, Form 5.2 under the s. 1, Article 489.1 of the Criminal Code, dated September 12, 2012, signed by a Justice of the Peace.

18 A, B & C

A: Informant’s Complaint; B: Notes made by Cindy Ross, Manager of the Sault Ste. Marie Humane Society for the period September 18, 2012, to October 29, 2012; C: Cindy Ross’ Will State.

19 A to S A - R: Series of photographs of Appellant’s residence and horses taken on August 24, 2012, by Cindy Ross; S: “Before and After” photographs of horses, “Chase” and “Monty” taken on August 24, 2012, and subsequently on September 18, 2012, respectively, taken by Cindy Ross and Agent Trudy Archibald, depicting improved body condition of the horses.

20 Kennel Cards for cats and dogs prepared by the Sault Ste. Marie SPCA.

21 Photograph of horse, “BJ”. 22 Photograph of horses in paddock depicting lack of grazing grass,

taken on August 24, 2012, by Agent Archibald. 23 Photographs in paddock depicting lack of gazing grass, taken of

August 24, 2012. 24 Photograph of horse, Tyler, taken on August 24, 2012. 25 A & B A: Agent Archibald’s Duty Notes; B: Agent Archibald’s Will State. 26 OSPCA Cruelty Report; complaint received August 12, 2012;

investigated by Agent Archibald. 27 A - AA Series of photographs of Appellant’s horses, taken on August 24,

2012, by Agent Archibald. 28 Notice of Removal, dated August 26, 2012, signed by Agent

Archibald in respect of 6 dogs, Rocks, Annie, Sago, Lucky, Buster

25

and Kramer, removed on August 24, 2012. 29 Notice of Removal, dated August 26, 2012, signed by Agent

Archibald in respect of 4 cats removed on August 24, 2012. 30 Notice of Removal, dated August 26, 2012, signed by Agent

Archibald in respect of 3 horses, Bender, Chase, and Cinder removed on August 24, 2012).

31 Notice of Removal, dated August 31, 2012, signed by Agent Archibald in respect of 8 horses, removed on August 31, 2012.

32 OSPCA Compliance Order in respect of a feeding regime for animals housed on Appellant’s Ranch ongoing until other Orders are modified dated August 31, 2012.

33 “While you were out” left on Appellant’s door apprising Appellant that OSPCA will be doing random checks on feeding, made by Agent Archibald.

34 Notice of Removal, dated September 5, 2012, signed by Agent Archibald in respect of 3 cats, removed on August 29, 30 and 31, 2012, respectively.

35 Notice of Modification, dated September 5, 2012, modifying feeding regime for horses in OSPCA Compliance Order (Exhibit 32), but leaving instructions for hay feeding the same, signed by Agent Archibald.

36 Notice of Revocation, dated September 17, 2012, revoking feeding regime OSPCA Compliance Order (Exhibit 32) as modified by Notice of Modification (Exhibit 35), signed by Agent Archibald.

37 OSPCA Compliance Order, dated September 17, 2012, to 1) to provide shelters for all horses by October 12, 2012; 2) specifying daily turn-out of horses housed in the barn, with 10 ft. by 10 ft. shelter effective immediately, 3) directions re feeding of the horses; 4) fecal samples and deworming, signed by Agent Archibald, 5) notice that Agent Archibald will return on the week of October 8-12, 2012, with recommendations for farrier work to be done from Dr. Good.

38 Farrier Re-Check and Recommendations, dated October 16, 2012. 39 OSPCA Compliance Order, dated October 26, 2012, to have the

cats and kittens examined by a veterinarian with a compliance date of November 2 2012, signed by Agent Archibald.

40 OSPCA Compliance Order, dated October 26, 2012, to farrier services on horses, compliance date of November 5, 2012, signed by Agent Archibald.

41 Statement of Account as of October 24, 2012, at 3:00 pm, signed by Agent Archibald in the amount of $8,765.60 in respect cats only, together with supporting documents.

42 Updated Statement of Account as of November 6, 2012, at 8:32 am, signed by Agent Archibald in the amount of $8,765.60 in respect of cats only.

43 Statement of Account as of October 24, 2012, at 3:00 pm, signed by

26

Agent Archibald in the amount of $7,866.17, in respect of dogs, only. 44 Updated Statement of Account as of November 6, 2012, at 8:32 am,

signed by Agent Archibald in the amount of $11, 451.28, in respect of dogs only.

45 Statement of Account as of October 24, 2012, at 3:00 pm, signed by Agent Archibald in the amount of $13, 8651.25 in respect of horses only, together with supporting documents.

46 Updated Statement of Account as of November 6, 2012, at 8:32 am, signed by Agent Archibald in the amount of $18, 454.03 in respect of horses only.

47 Weight Log of horses. 48 Statement of Account, as of November 7, 2012, signed by Agent

Archibald in respect of all animals, in the amount of $43,002.41. 49 A & B Photographs taken on July 28, 2012. 50 Photographs of various bathing and skin product for the dogs. 51 Character reference letter from Ashley Moore, dated October 4,

2012. 52 Character reference letter from Dawn Moore, dated October 4, 2012.53 Character reference letter from Meredith Thompson, dated

November 4, 2012. 54 Photograph of horse, Romeo, taken on August 22, 2012, being let

out to pasture. 55 A & B Preparing grain feeding for horses. 56 Horses in pasture with tall grass. 57 Horse, Tyler, on transport trailer, taken on August 31, 2012. 58 Two bills for farrier service dated February and March 2012,

respectively. 59 Photographs for Kramer and two cats. 60 Occurrence Report dated July 26, 2012, re a visit by police as a

result of a complaint. Found horses fine, eating grass in field and hay in field.

61 Canadian Agri-Food Research Council guidelines “Codes of Practice for Horses”.

62 Weight log. 63 A & B A: Notice of Revocation, dated December 20, 2012, revoking Items

(2) and (4) of the Order of September 17, 2012; B: Notice of Modification, dated December 20, signed by Agent Archibald, modifying Item (1) of the Order of September 17, 2012, (re shelters) by extending the compliance date from October 12, 2012, to January 18, 2012.

64 A - D Series of photographs taken by Appellant and Kristie Lynn Tulloch on August 3, 2011, depicting certain of the horses’ hooves.

65 A & B Continuation of Agent Archibald’s Duty notes and Will State submitted earlier as Exhibits 25A & B, respectively.

66 Notice of Revocation, dated January 10, 2013, revoking Items (3) of the Order of September 17, 2012.

27

67 Notice of Revocation, dated January 10, 2013, revoking Order of October 26, 2012, regarding the cats and kittens.

68 Sketch of aerial view of the ranch. 69 A & B A: Four photographs of tree shelter in the pony pen, taken by

Appellant on September 29, 2012; B: satellite view of farm. 70 A - H Photographs of horses taken on December 26, 2012, by Kristie

Tulloch. 71 Letter from Kristie Tulloch as to Appellant’s good character. 72 “To Whom it May Concern” letter from BJ Kenzel, dated September

1, 2012. 73 Facebook announcement by Appellant. 74 A: Inspector Clancy Martin’s Duty Notes; B: Inspector Martin’s Will

State. 75 Series of photographs of the shelters taken by Inspector Martin. 76 A - C A: Bill from John Munnoch Farrier Service, dated November 15,

2012, for 9 trims @ $35; B: Bill, dated, November 25, 2012, for 20 trims @ $35 per horse; C; Report of horses’ hooves (date illegible).

77 A - R Photographs taken on October 27, 2012, by Appellant of various horses’ hooves.

78 A - E Photographs taken on September 29, 2012, by Appellant of tree shelter.

79 Environment Canada Canadian Climate Normals 1997- to 2000.