Calgary (City) v Van Male, 2024 ABCJ 153

Statute: Other,
Section: Dangerous Dogs Act, RSA 2000, c D-3, s 2(1)
Province or Territory: Alberta,
Offence: Other,
Animal: Dog,
Type of Distress: Unprovoked dog attacks causing the death of one dog, injuries to two other dogs, and injury to a person
Sentence: Conditional return of dog to owner
Legal Issue: Procedure (Charges), Provincial case (Disposition of animals), Ownership/Care/Control,

On February 25, 2024, two dogs, Gucci and Banksy, escaped from their owner’s yard in Calgary and were involved in two separate unprovoked incidents. One dog was killed, and two other dogs and a person were injured. On April 19, 2024, the City of Calgary filed an application seeking a court order pursuant to the Dangerous Dogs Act, RSA 2000, c D-3, to have both dogs declared dangerous and euthanized. Following a canine behaviour and aggression evaluation, the city abandoned the application with respect to Gucci and proceeded only in relation to Banksy.

Is Banksy a Dangerous Dog?

In the absence of a statutory definition, the court adopted the definition from Edmonton (City) v Andrews, which includes dogs that, without provocation, injure or kill, threaten safety, or display aggressive tendencies posing an imminent danger (para 9). On a balance of probabilities, the court found that Banksy met this definition, having killed one dog, participated in an unprovoked attack injuring two other dogs and a person, and demonstrated aggressive tendencies towards persons and animals without provocation, and thus presented an imminent danger (para 26).

What is the Appropriate Remedy?

The court assessed Banksy’s temperament, the severity of the attacks, his physical potential for inflicting harm, and the likelihood of recurrence. While the injuries caused by the attacks were at the highest end of seriousness, the court also considered the owner’s prior responsible ownership, the absence of any history of aggression, and their willingness to implement mitigation measures, such as including secure fencing and engaging in behaviour modification training.

Balancing these factors, the court held that public safety could be managed without immediate euthanasia. Banksy was permitted to return to the owner subject to strict conditions, including neutering, muzzling, mandatory training, property safeguards, and immediate surrender and euthanasia if any conditions are breached (paras 68- 70).

https://canlii.ca/t/k5vhh
Calgary (City) v. Van Male 2024 ABCJ 153

Butler v Whalen, 1984 Carswell Nfld 178

Statute: Criminal Code,
Section: s. 401(a) now known as s. 445(1)(a)
Province or Territory: Newfoundland and Labrador,
Offence: Killing,
Animal: Dog,
Type of Distress: Willful shooting and killing of a dog who the appellant believed was threatening his animals
Sentence: Appeal allowed in part - conviction upheld but absolute discharge granted to appellant
Legal Issue: Common defenses (Colour of right), Common defenses (Legal excuse), Unnecessary, Wilfulness,

On January 25, 1982, the appellant willfully and without lawful excuse shot and killed the respondent’s dog while it was in the appellant’s yard. At trial, he was convicted under section 401(a) of the Criminal Code of Canada and fined $100, or, in default of payment within 30 days, to 30 days’ imprisonment. Section 401(a) makes it an offence to “wilfully and without lawful excuse” kill a dog “kept for a lawful purpose.”

The appellant appealed, arguing that:

  1. The respondent did not keep the dog for a lawful purpose;
  2. The respondent failed to tether the dog as required by the Dog Act, 1976, which permits anyone to destroy a dog found killing, maiming, or worrying humans or livestock; and
  3. He shot the dog believing it threatened his sheep.

The key legal question was whether the appellant’s belief constituted a lawful excuse. Section 386(2) of the Criminal Code provides that no one is guilty if they acted with “legal justification or excuse” and “colour of right.” Evidence showed that the dog was not barking and did not chase the sheep while in the appellant’s yard.

The appellate court held that while there are circumstances in which a dog may be lawfully killed if attacking domestic animals, the dog in this case was not doing so. Accordingly, the conviction under section 401(a) was upheld, but the appellant was granted an absolute discharge.

 

BUTLER v. WHALEN

Niagara North Condominium Corp. No. 46 v Chassie, 1999 CanLII 15025 (ONSC)

Statute: Other,
Section: Condominium Act, R.S.O. 1990, c. C.26; Human Rights Code, R.S.O. 1990, c. H.19
Province or Territory: Ontario,
Offence: Other,
Animal: Cat,
Type of Distress: Condo corporation seeking an order to remove residents' 16-year-old cat
Sentence: Appeal dismissed
Legal Issue: Procedure, Provincial case,

The applicant, Niagara North Condominium Corporation No. 46 (NNCC), commenced an application in the Ontario Court (General Division) seeking an order directing the respondents, Raymond and Muriel Chassie, to remove their 16-year-old cat from their unit, claiming its presence violated the condominium’s Declaration and Rules, which prohibited all animals, except small, caged birds and fish.

The corporation relied on its authority under the Condominium Act, R.S.O. 1990, c. C.26, which permits the establishment and enforcement of rules. The court found enforcement unreasonable.

The Chassies’ position was that they had been disadvantaged at the time of purchase, as they were unaware of the cat prohibition and the possibility of enforcement. Further, the Board of Directors had also acquiesced to previous pets, including cats, which undermined the corporation’s claim and made strict enforcement unfair. Finally, removing the cat would further constitute discrimination against Mrs. Chassie due to her depression under the Ontario Human Rights Code, as the cat provided essential companionship and therapeutic support.

The Court found the pet prohibition unreasonable in modern society, where attitudes toward pets have evolved. The prohibition lacked flexibility to accommodate changing circumstances, such as the needs of elderly or disabled residents. The Court emphasized that the cat did not interfere with the use or enjoyment of other units (paras 83-94). It was also found that Mrs. Chassie suffered from a mental disorder (depression) within the meaning of the Human Rights Code. The cat was essential to her mental health and well-being, making them a support/therapy animal, therefore enforcing the no-pet rule would constitute discrimination against Mrs. Chassie based on her health condition or disability, contrary to the Code (paras 108-115).

The application was dismissed; no costs awarded.

https://canlii.ca/t/1wclb
1999 NNCC No 46 v Chaissie

Hamer v. Jane Doe, 2024 ONCA 721

Statute: Other,
Section: Courts of Justice Act, s. 137.1
Province or Territory: Ontario,
Offence: Hoarding, Neglect,
Animal: Cat,
Type of Distress: Appeal on dismissal of defamation action involving accusations of potential hoarding and neglect of cats
Sentence: Appeal allowed; dismissal of defamation action set aside
Legal Issue: Provincial case (Procedure),

This is an appeal of the motion judge’s dismissal of the appellants defamation action; the reasons and summary are here: Hamer v Doe, 2023 ONSC 4837.

The appellant operates a Roo Roo Cat Rescue, a rehabilitation and adoption service. They began an action against the respondents for negative social media posts and associated comments that alleged or suggested that the appellants were mistreating cats under their care and that Hamer was a cat hoarder with mental health issues.

The appellants allege that the motion judge committed a legal error by misapplying the criteria under s. 137.1(a) and (b) of the CJA and treated the respondents motion as a motion for a summary judgement. The court held that the motion judge’s analysis did not adequately consider both legislative purposes underlying s. 137.1 of the CJA by focusing on the protection of free speech to the exclusion of the protection of one’s reputation through a court action. Furthermore, the court held that the motion judge erred when they dismissed the action against the respondents. This was compounded by dismissing the entire action. S. 137.1 states that the action may be dismissed against only the moving party, not other defendants who may be participating in a motion.

The respondents (Defendants in the original action) position was that that the statements were expressions on matters of public interest, protected by defences such as fair comment, justification, and responsible communication. They argued that the plaintiffs failed to demonstrate substantial harm.

The Court determined that the motion judge had failed to properly assess the cumulative effect of the impugned statements and mischaracterized the potential harm caused by the defamation. The social media posts alleged that the plaintiffs were mentally unstable and mistreated animals. This led to an improper analysis of the defences and the harm caused (paras. 59-61). It found that the motion judge had improperly dismissed the appellants’ evidence of harm, including the rescue’s and individual’s reputation and psychological harm, by imposing an unduly high evidentiary burden (paras. 103-110). The defamatory statements, which devolved into personal attacks, were of low public interest value and outweighed by the harm to the appellants’ professional reputation: “the impugned expression was unnecessary to convey the animal welfare message… the respondents could have expressed their concerns about the appellants’ activities without resort to the extreme and defamatory language that was used in the impugned statements. There is a significant difference between, on the one hand, providing others with a descriptive account of the animal welfare concerns with the appellants’ activities, and on the other hand, calling Ms. Hamer a mentally unstable cat hoarder who harms or kills cats in the appellants’ care” (para. 121).

The Court allowed the appeal and set aside the dismissal of the action, including the motion judge’s costs award in favour of the respondents. The Court found the appellants were entirely successful on this appeal and would therefore be entitled to their costs of the appeal from the appellants in the all-inclusive agreed upon amount of $14,644.46

https://canlii.ca/t/k74nw
Hamer v Jane Doe 2024 ONCA 721 - appeal

Hamer v Doe, 2023 ONSC 4837

Statute: Other,
Section: Courts of Justice Act, R.S.O 1999, c. C.43, s. 37.1
Province or Territory: Ontario,
Offence: Hoarding, Neglect,
Animal: Cat,
Type of Distress: Defamation action involving accusations of potential hoarding and neglect of cats
Sentence: Motion granted; Plaintiff defamation action dismissed under anti-SLAPP legislation
Legal Issue: Suitable care,

This case concerns a anti-SLAPP motion regarding a defamation action involving the plaintiffs and defendants.

The plaintiffs are Dee-Anne Hamer and Roo Roo Cat Rescue, which Hamer owns and operates. Roo Roo provides cat rescue, rehabilitation, and adoption services. A motion was brought by the defendants, Susan Namedof and Nicole Algar, to dismiss the Plaintiffs’ defamation claim under Ontario’s anti-Strategic Lawsuit Against Public Participation (SLAPP) legislation, as the proceeding limits freedom of expression on matters of public interest under Section 137.1 of the Courts of Justice Act, R.S.O.1990, c. C.43.

The defamation claim arises from three posts made on Facebook and comments made under those posts. The posts included concern for the cats under care and raised suspicions of potential hoarding and neglect of cats. After initial legal action was commenced, the defendant deleted her profile, effectively removing the posts. More posts were made on a different platform, which the plaintiff again sought legal action against.

Plaintiffs claimed that the posts were defamatory, harmed their reputation, and caused financial and emotional damage, and argued that the posts were not in the public interest. The defendants position was that they had valid defences of justification and fair comment, and contended that the harm alleged by the Plaintiffs was not sufficiently serious to outweigh the public interest in protecting their expression.

The judge held that the posts are in the public interest because they relate to animal protection, welfare, and rescue. Also, that none of the claims had substantial merit. Ultimately, the judge held that the case is about the plaintiff wanting to silence the defendant and any criticism of their rescue operation and not real damage. Potential harm to the plaintiff is outweighed by the public interest in protecting expression.

The motion was granted and the Plaintiffs’ defamation action was dismissed (para 56).

https://canlii.ca/t/jzzhc
Hamer v Jane Doe 2023 ONSC 4837 - motion to dismiss

Rose v. Wells & Wells, 2024 CanLII 13996

Statute: Other,
Section: n/a
Province or Territory: Newfoundland and Labrador,
Offence: Other,
Animal: Cat,
Type of Distress: Theft of cat
Sentence: Ordered to pay $1,128.99 + $300 (costs)= $1,428.00
Legal Issue: Provincial case (Costs), Ownership/Care/Control, Sentencing (Restitution orders),

This is a civil dispute where the plaintiff Ms. Rose filed a statement of claim seeking compensation for the removal of her cat Jack Rose from her property without consent.

The facts indicate that the defendants took Jack Rose without consent while Ms. Rose was living with the defendants’ son and brother-in-law Dylan Wells, then gave the cat to a shelter or sold him. They claim Jack Rose was not being properly cared for and had gotten permission from Mr. Wells to remove Jack Rose and do with him what they what they deemed appropriate. The defendants claim that the shelter is out of business and that they do not know where Jack Rose is but have received messages that he is doing well (para. 4).

The issue before the court was whether the defendants must compensate Ms. Rose for the theft of her cat. The court determined that Mr. Wells had no proprietary interest in Jack Rose and therefore was unable to authorize his removal. The plaintiff must be compensated for the costs of purchasing Jack Rose because she alone bought Jack Rose from the breeder.

From a legal perspective, animals are considered property, therefore costs are determined by the value of the pet in accordance to their market price, regardless of emotional attachment for the animal (para. 7-8). The court ordered the defendants pay a total of $1,428.00 which includes the purchase price of Jack Rose from a breeder, the cost of filing the statement of claim, the service fee, and the costs for disputing the claim.

https://canlii.ca/t/k32d9
Rose v Wells and Wells 2024 NLPC 1323C00040 2024 canlii 13996

Animal Justice et al v A.G. of Ontario, 2024 ONSC 1753

Statute: Charter of Rights and Freedoms,
Section: 2(b)
Province or Territory: Ontario,
Offence: Other,
Animal: Chicken, Pig,
Type of Distress: Provincial "ag gag" regulations pose a Charter violation of freedom of expression
Sentence: Section 1 of the Charter does not save the infringement these regulations have on s. 2(b) of the Charter, the right to freedom of expression
Legal Issue: Charter of Rights and Freedoms, Provincial case,

Animal Justice and the interveners request the court to review sections 9, 11(1)(d) and (e), 12(1)(c) and (d), 12(2)(a)(i) and (ii), and 12(2)(c) of O. Reg. 701/20: General under the Security from Trespass and Protecting Food Safety Act, 2020.

The organization raised four contextual factors in this application: the increasing industrialization of animal husbandry, the nature of animal husbandry standards in Canada, the nature of accepted practices in Canada, and the usefulness of undercover exposés. Arguments made include:

  1. The trend of industrialization over the last few decades has been to consolidate animal husbandry into a smaller number of farms producing a larger number of animals with fewer employees.
  2. The nature and source of regulation of the livestock industry. The current regulation for treatment of any animal in Ontario is the Provincial Animal Welfare Services Act. Although one provision of that act makes it an offence to cause an animal to be in distress, that provision does not apply to animal husbandry carried out in accordance with administrative requirements.
  3. The standards themselves. The applicants point out that certain accepted practices in Canada would be illegal if applied to a pet and include practices that have been banned in jurisdictions like the U.K. and the EU.
  4. The fourth contextual factor involves undercover exposés. The applicants submit that the only way of bringing the conditions in which animals are raised to the public eye is through covert exposés.

The applicants and interveners assert the Act, and its regulations, violate their rights under the Canadian Charter of Rights and Freedoms (Charter) and request that the Court determine whether or not they violate s. 2(b) of the Charter or if they can be saved by s. 1 of the Charter which allows for certain infringements in justifiable circumstances.

To justify an infringement of a Charter right under s. 1, the government must demonstrate the measure: (i) furthers a pressing and substantial objective, (ii) is rationally connected to the objective, (iii) minimally impairs the right at issue, and (iv) is proportionate in that its benefits outweigh its deleterious effects i.e., the Oakes test. Sections 5(4) and 6(2) of the Act minimally impair freedom of expression and are saved by s. 1 of the Charter.

On April 2nd, an Ontario Superior Court judge found that several provisions in the province’s Security from Trespass and Protecting Food Safety Act violated the right to freedom of expression under s. 2(b) of the Charter of Rights and Freedoms but stopped short of finding restrictions on protests near slaughterhouses unconstitutional. Section 9 of the regulations was overly broad and disproportionate and not saved by section 1 of the Charter. Other sections of the regulations that were deemed unconstitutional relate to section 12 (at para. 110), where the whistleblower would have to know in advance whether certain farm activities that appear to be cruelty such as “piglet thumping”, a slaughterhouse method of killing piglets, is legal or illegal in order to determine if their actions would fall under the protected exceptions, which further restricts freedom of expression.

https://canlii.ca/t/k3thm
Animal-Justice-et-al-v-Attorney-General-of-Ontario-2024-ONSC-1753

Ziggy’s Rescue v Penko and Dwyer, 2022 BCPC 212

Statute: SPCA Act (BC),
Section: n/a
Province or Territory: British Columbia,
Offence: Other,
Animal: Dog,
Type of Distress: No distress: foster-to-adopt contract dispute between rescue organization and adoptive family of Maddie, who gave birth to nine puppies.
Sentence: Contract transferred ownership of Maddie to her adoptive parents
Legal Issue: Ownership/Care/Control,

This is a civil matter regarding the interpretation of an adoption/foster contract of a dog (Maddie) and her nine puppies. The plaintiff, Ziggy’s Rescue, took the position that when Maddie was adopted, it was agreed that Maddie was pregnant and after giving birth, the puppies would belong to Ziggy’s Rescue. Additionally, Ziggy’s Rescue argued that it was agreed that the adoption is finalized when Maddie is spayed, but since she was not spayed when giving birth, both Maddie and the puppies still belonged to Ziggy’s Rescue.

The defendants argued that there was no agreement with respect to Maddie’s pregnancy and Maddie was adopted (owned) when they took possession of her and paid the $600 fee to the plaintiff.

The judge determined ownership of Maddie by looking at the terms and intention of the contract. Finding that the contract used the words “owner” and that the adopters had obligations throughout the dog’s life, the judge concluded that the contract transferred ownership, rather than mere possession. The judge also found the defendants more credible, which gave more weight to their defence that they had not known about the conditions that Ziggy’s Rescue placed into the contract. Conversely, the judge found Ziggy’s Rescue less credible because it had claimed to be a non-profit organization when it was never registered as one and it appeared that they had been making a profit from selling dogs which was the reason that Ziggy’s Rescue wanted the puppies: in order to sell them for $700 each. Regarding the puppies, two had died at birth and Ziggy’s Rescue tried to claim that as a loss, stating that it should receive $1,400 for the two lost puppies. With respect to the remaining seven puppies ($4,900), the defendants had willfully transferred the puppies to the SPCA, and the SPCA chose to transfer them back to Ziggy’s Rescue.

The judge ultimately focused the decision on Maddie’s best interest and, since she had been spayed and was in a safe and loving home with the defendants, it was decided that the defendants were the rightful owners of Maddie. Regarding the two puppies who died at birth, Ziggy’s Rescue would not receive $1,400 for the two puppies as it has nothing to do with the best interests of Maddie.

https://canlii.ca/t/js96t
Ziggys Rescue v Penko and Dwyer 2022 BCPC 212