In Hurley v. OSPCA, 2015 ONSC 7784 (CanLII), the Ontario Superior Court of Justice upheld an Ontario Animal Care Review Board decision in support of the removal of 25 horses and one goat from a northern Ontario farm by the Ontario Society for the Prevention of Cruelty to Animals (the “OSPCA”). The OSPCA removed the animals from the farm, in accordance with the  Ontario Society for the Prevention of Cruelty to Animals Act (the “Act”)and after the SPCA inspected the farm and found the animals with no food or unfrozen water available, and a number of the horses ingesting manure.

The OSPCA had initially visited the farm almost a year earlier, and ordered Hurley to provide the animals with proper hay, salt and mineral blocks, adequate dry resting places. Hurley was also ordered to collect fecal samples for testing the health of the horses and seek medical attention for a few horses with specific injuries.  Despite being granted a number of extensions, Hurley failed to comply with the orders for more than a year.

After a week-long hearing, the Court ordered Hurley, the self-represented farm owner, to pay for the OSPCA’s costs for caring for the majority of the animals over a period of nearly nine months as well as the OSPCA’s legal fees.  The Court found the OSPCA was not entitled to recover the cost of caring for two of the 25 horses because the OSPCA’s failed to name the horses on the Notice of Removal.

Section 1(1) of the Act defines “distress” as “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”.

Section 14, of the Act allows inspectors to remove animals in distress where a vet has inspected an animal and advised the inspector that it is necessary to remove the animal because of the state of its health or well-being and an order respecting the animal under section 13 has not been complied with.

Section 13(1) of the Act allows OSPCA inspectors to order the owner or custodian of an animal in distress to take steps “necessary to relieve the animal of its distress” or to “have the animal examined and treated by a veterinarian at the expense of the owner or custodian”.

In the decision, Judge Kurke,  found that the OSPCA followed the Act when they removed 23 of the horses and the goat. All the animals had been properly inspected by a vet and the “chronic situation” of the horses and goat qualified as distress under the Act. He further found that the test for distress is not “imminent danger of demise”.  He found that the OSPCA’s costs for caring for the animals, although high due to the number of animals, were very reasonable and reflected a desire to minimize the costs maintaining the animals “so as not to demand exorbitant amount for persons in the appellant’s situation”. 

The decision shows that the OSPCA has the authority to act and remove animals when the animals are in chronic states of distress, but that it must follow the letter of the legislation when using these powers.