Simon's Legal Resources

Wild Animal Law of Canada

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

(current to 15 September 2016)

Note Re Application of the Ontario Society for the Prevention of Cruelty to Animals Act ('OSPCAA')

The OSPCAA does not define the term 'animal', and as such makes no distinction between wild and domestic animals - though it is apparent from the Act's usage that 'animal' does not include fish, which are referred to separately on one occasion [see OSPCAA 11.2(6)]. Duties owed to animals do sometimes vary with whether they apply to animals in general circumstances, and additionally to when they are owned or in custody.

Note that animals possessed by registered research facilities or by licensed supply facilities [as regulated under the Animals for Research Act ('ARA')] are exempt from the provisions of OSPCAA, except some provisions as they apply to orcas alone [ARA 1.1].

This law bears on the wildlife issues of:

• PROTECTION
  
• OWNERSHIP AND POSSESSION
  
• FACILITIES
  
• ADMINISTRATIVE
  
• TRANSPORTATION
  
• EUTHANASIA
  
• CIVIL LIABILITY
  
• MUNICIPAL JURISDICTION

The full current text of the OSPCA Act and it's Regulations may be viewed at the Ontario statutes website.

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Table of Contents
1. Overview
2. Ownership
3. Prohibitions and Protections
(a) 'Distress'
(b) General Prohibitions
(c) Specific Prohibitions
(d) Veterinarian Duty to Report Abuse or Neglect
4. Standards of Care
(a) By Species
(b) Exceptions
5. Orcas
6. Euthanasia
7. Enforcement
(a) General
(b) Where Animals are Being Kept for Exhibition, Entertainment, Boarding, Hire or Sale
(c) Where Animal in Distress
(d) Inspector and Agent Orders
(e) Society Taking Possession Where Distress or Need
8. Civil Liability
9. Municipal Jurisdiction

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1. Overview

The Ontario Society for the Prevention of Cruelty to Animals Act (OSPCAA) is essentially an older form of SPCA legislation found across the common law world, though with relatively extensie species-specific standard of care provisions grafted onto it. It operates through a provincial 'Society', with local 'humane society' affiliates [OSPCAA 2,4], and collectively their object is "to facilitate and provide for the prevention of cruelty to animals and their protection and relief therefrom" [OSPCAA 3].

It is accurate to consider the Society and it's affiliate as being the 'animal police' in Ontario, as the basic structure of the legislation is that of police legislation.


2. Ownership

When the owner or custodian of a stray or abandoned animal that has (1) been in the Society's custody past the redemption period of three business days (count weekdays, exclude holidays) [General Regulation 2] and (2) cannot be identified, then title to the animal reverts to the Society or affiliate, as the case may be [OSPCAA 1(1), 15.1]. This is a relatively recent (2009) provision meant to settle ownership issues with such animals quickly in the Society's favour, to facilitate expedited adoption or euthanasia without dispute from prior owners or custodians.


3. Prohibitions and Protections

(a) 'Distress'

Historically, the key concept of SPCA animal protection has been that of 'distress'. For our present purposes this means "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" [OSPCAA 1(1)].

(b) General Prohibitions

The following are prohibited with respect to animals:

• anyone causing an animal to be in distress [OSPCAA 11.2(1)]; or
  
  
• an owner or custodian of an animal permitting the animal to be in distress (this essentially imposes an additional duty to prevent ongoing distress) [OSPCAA 11.2(2)].

These prohibitions are excepted for [OSPCAA 11.2(6,7)]:

• an activity permitted under the Fish and Wildlife Conservation Act ('FWCA') (see that module) in relation to wild animals in the wild (primarily: hunting and trapping);
  
  
• persons hunting under the FWCA [Exemptions Regulation ('E Regs') 1];
  
  
• an activity permitted under the FWCA or the federal Fisheries Act (see those modules) in relation to fish (primarily, fishing);
  
  
• an activity carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry;
  
  
• veterinarians and their staff providing veterinary care, or boarding an animal as part of its care, in accordance with the standards of practice established under the Veterinarians Act.

(c) Specific Prohibitions

Additionally, the following are prohibited, without exception:

• an owner or custodian permitting an animal to fight another animal [OSPCAA 11.2(3)];
  
  
• anyone training an animal to fight another animal [OSPCAA 11.2(3)];
  
  
• anyone owning or possessing "equipment or structures that are used in animal fights or in training animals to fight" [OSPCAA 11.2(4)];
  
  
• anyone harming or causing harm to "a dog, horse or other animal that works with peace officers in the execution of their duties, whether or not the animal is working at the time of the harm" [OSPCAA 11.2(5)].

(d) Veterinarian Duty to Report Abuse or Neglect

Veterinarians who come to believe that animal/s are being subjected to abuse or neglect must report this to the Society [OSPCAA 11.3].


4. Standards of Care

(a) By Species

With amendments brought into force with Bill 50 in 2009, the OSPCAA adopted animal-specific standards of care for owned or custodial animals, set out as follows in the Standards of Care and Administrative Standards Regulation ('SCAS Regs') [OSPCAA 11.1(1), SCAS Regs 1]:

• All Animals
  
  As per SCAS Reg s.2:

  2. (1) Every animal must be provided with adequate and appropriate food and water.
  
  (2) Every animal must be provided with adequate and appropriate medical attention.
  
  (3) Every animal must be provided with the care necessary for its general welfare.
  
  (4) Every animal must be transported in a manner that ensures its physical safety and general welfare.
  
  (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,
  (a) space to enable the animal to move naturally and to exercise;
  (b) sanitary conditions;
  (c) ventilation;
  (d) light, and;
  (e) protection from the elements, including harmful temperatures.
  
  (7) If an animal is confined to a pen or other enclosed structure or area,
  (a) the pen or other enclosed structure or area, and any structures or material in it, must be in a state of good repair;
  (b) the pen or other enclosed structure or area, and any surfaces, structures and materials in it, must be made of and contain only materials that are,
  (i) safe and non-toxic for the animal, and
  (ii) of a texture and design that will not bruise, cut or otherwise injure the animal; and
  (c) the pen or other enclosed structure or area must not contain one or more other animals that may pose a danger to the animal.
  
  (8) Every animal that is to be killed must be killed by a method that is humane and minimizes the pain and distress to the animal; an animal’s pain and distress are deemed to be minimized if it is killed by a method that produces rapid, irreversible unconsciousness and prompt subsequent death.

• Wildlife in Captivity
  
  As per SCAS Regs ss.2 (above) and ss. 4 and 5:

  4. (1) Wildlife kept in captivity must be provided with adequate and appropriate care, facilities and services to ensure their safety and general welfare as more specifically set out in subsections (2) and (3) of this section and in sections 5 and 6.
  
  (2) Wildlife kept in captivity must be provided with a daily routine that facilitates and stimulates natural movement and behaviour.
  
  (3) Wildlife kept in captivity must be kept in compatible social groups to ensure the general welfare of the individual animals and of the group and to ensure that each animal in the group is not at risk of injury or undue stress from dominant animals of the same or a different species.
  
  .....
  
  5. (1) A pen or other enclosed structure or area for wildlife kept in captivity must be of an adequate and appropriate size,
  (a) to facilitate and stimulate natural movement and behaviour;
  (b) to enable each animal in the pen or other enclosed structure or area to keep an adequate and appropriate distance from the other animals and people so that it is not psychologically stressed; and
  (c) to ensure that the natural growth of each animal in the pen or other enclosed structure or area is not restricted.
  
  (2) A pen or other enclosed structure or area for wildlife kept in captivity must have,
  (a) features and furnishings that facilitate and stimulate the natural movement and behaviour of each animal in the pen or other enclosed structure or area;
  (b) shelter from the elements that can accommodate all the animals in the pen or other enclosed structure or area at the same time;
  (c) surfaces and other materials that accommodate the natural movement and behaviour of each animal in the pen or other enclosed structure or area;
  (d) one or more areas that are out of view of spectators; and
  (e) one or more sleeping areas that can accommodate all the animals in the pen or other enclosed structure or area at the same time and that are accessible to all the animals at all times.
  
  (3) A pen or other enclosed structure or area for wildlife kept in captivity must be made of and contain only materials that are,
  (a) safe and non-toxic for the animals kept in the pen or other enclosed structure or area; and
  (b) of a texture and design that will not bruise, cut or otherwise injure the animals.
  
  (4) A pen or other enclosed structure or area for wildlife kept in captivity and any gates or other barriers to it, including moats, must be designed, constructed and locked or otherwise secured to prevent,
  (a) interaction with people that may be unsafe or inappropriate for the wildlife;
  (b) animals escaping from the pen or other enclosed structure or area by climbing, jumping, digging, burrowing or any other means; and
  (c) animals or people (other than people who are required to enter the enclosure as part of their duties) from entering the pen or other enclosed structure or area by climbing, jumping, digging, burrowing or any other means.
  
  (5) A pen or other enclosed structure or area for wildlife kept in captivity and any gates or other barriers to it, including moats, must be designed, constructed and maintained in a manner that presents no harm to the wildlife.

• Primates in Captivity
  
  As per SCAS Regs ss.2,4 and 5 (above) and 6:

  6. Every primate kept in captivity must be provided with,
  
  (a) daily interaction with a person having custody or care of the primate;
  
  (b) a varied range of daily activities, including foraging or task-oriented feeding methods; and
  
  (c) interactive furnishings, such as perches, swings and mirrors.

• Marine Mammals in Captivity
  
  As per SCAS Regs ss.2,4,5 (above) and ss.7-21 (Part III of the SCAS Reg, follow the link above).
  
  For these purposes, a marine mammal means sea otters, whales, dolphins and porpoises, manatees and dugongs, true seals, eared seals and sea lions, or walruses [SCAS Regs 1.1].

For these purposes, a requirement that a standard of care be 'adequate and appropriate or necessary' is a requirement that the standard of care be adequate and appropriate or necessary to the specific animal, having regard to its species, breed and other relevant factors [SCAS Regs 1(4)].

(b) Exceptions

These standards are broadly excepted for [OSPCAA 11.1(2,3)]:

• "an activity carried on in accordance with reasonable and generally accepted practices of agricultural animal care, management or husbandry"; and
  
  
• "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".

5. Orcas

It is prohibited to breed or possess orcas (killer whales) in Ontario, with a possession exception for orcas possessed in Ontario on March 22, 2015. However if an orca first came into a person's possession on or after 22 March 2015 but before 28 May 2015, then it may be possessed legally until 28 November 2015 [OSPCAA 11.3.1].


6. Euthanasia

A Society inspector or agent may destroy an animal with either the consent of the owner or if "a veterinarian has examined the animal and has advised the inspector or agent in writing that, in his or her opinion, it is the most humane course of action" [OSPCAA 14(2)].


7. Enforcement

(a) General

For enforcement purposes, the Society may appoint a Chief inspector, inspectors and agents who have the authority of police officers for animal welfare and cruelty matters [OSPCAA 6.1, 11]. These powers include (in addition to those set out below) warrant entry [OSPCAA 11.5], to examine and sample an animal [OSPCAA 12.1] and plain view seizure [OSPCAA 12.1(4)].

The OSPCAA has a broad offence provision which allows prosecution for violations, with the possibility on conviction of a prohibition on owning, having custody of or living with animals [OSPCAA 18.1(1,6)].

(b) Where Animals are Being Kept for Exhibition, Entertainment, Boarding, Hire or Sale

Where animals are being kept "for the purpose of animal exhibition, entertainment, boarding, hire or sale" then Society inspectors and agents have specific authority as follows:

• to, without a warrant, enter and inspect a building or place (other than an 'accredited veterinary facility') for the purpose of determining whether the standards of care or administrative requirements (see s.4 above) are being complied with. Entry into and inspection of a dwelling place requires either a warrant or the consent of the occupier. Entry may only be be made 9am to 5pm or at any other time that the building or place is open to the public [OSPCAA 11.4];
  
  
• to demand that a person produce a record or thing for inspection (with a corresponding duty on the person to comply), for the purpose of determining whether the standards of care or administrative requirements (see s.4 above) are being complied with [OSPCAA 11.4.1].

(c) Where Animal in Distress

Entry and inspection warrants may be issued where an animal is in distress in any building or place [OSPCAA 12(1)].

Such entry and inspection may be done without warrant where 'an animal that is in immediate distress in any building or place, other than a dwelling" (other than an 'accredited veterinary facility'). For this purpose, 'immediate distress' "means distress that requires immediate intervention in order to alleviate suffering or to preserve life" [OSPCAA 12(6-8)].

Where, in the course of authorized entry into a building or place an inspector or agent finds an animal in distress, they may "in addition to any other action he or she is authorized to take under this Act, supply the animal with food, care or treatment" [OSPCAA 12.1(3)].

(d) Inspector and Agent Orders

Inspectors and agents, where they find an animal in distress and where the owner or custodian may be found promptly, may issue an Order to them in writing to "take such action as may, in the opinion of the inspector or agent, be 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" [OSPCAA 13].

(e) Society Taking Possession Where Distress or Need

A Society inspector or agent may take possession of an animal "for the purpose of providing it with food, care or treatment to relieve its distress where" either [OSPCAA 14(1)]:

• 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;
  
  
• an 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
  
  
• an order respecting the animal has been made [as under (d)] and the order has not been complied with.

8. Civil Liability

Inspectors and agents of the Society, veterinarians, and member of the Society Board are immune from civil liability for anything done by them in good faith under, or purporting to be under, the authority of this Act [OSPCAA 19].


9. Municipal Jurisdiction

If a municipal by-law "pertaining to the welfare of or the prevention of cruelty to animals" conflicts with the OSPCAA, "the provision that affords the greater protection to animals shall prevail" [OSPCAA 21].