Before: The Honourable
Mr. Justice Powers
Reasons for Judgment
|
Counsel for the
petitioner |
J.M. Drayton |
|
Counsel for the
respondents |
D.P. Montrichard
|
|
Date and Place of
Trial/Hearing: |
November 5, 2004 |
|
|
Kamloops, B.C. |
INTRODUCTION:
[1]
This is a petition under the Judicial Review
Procedure Act (the “Act”). Thirty dogs and
five cats were seized from the petitioner’s possession on July 27,
2004. They were seized pursuant to the Protection and
Prevention of Cruelty to Animals Act, s.11. They were
subsequently disposed of by the Society pursuant to s.18 which
provides:
If an animal is removed
from the custody of its owner under section 11 and taken into the
custody of the Society, the Society may destroy, sell or otherwise
dispose of the animal 14 days after the Society has given notice
to the owner in accordance with section 19.
[2]
No issue was raised with regard to the cats. The
petitioner’s primary concern is the dogs which were English
Mastiffs and one Pug. The petitioner is a dog breeder
specializing in English Mastiffs. The Pug was described as a
family pet.
[3]
The Mastiffs were disposed of by the British Columbia
Society for the Prevention of Cruelty to Animals (the “Society”)
when they were given to two separate groups involved in finding
homes for Mastiffs. Counsel agree it is reasonable to assume that
on the disposition of those animals, that there was a requirement
that when they are adopted out, that they would be neutered or
spayed. The Pug was adopted by a family.
[4]
The petitioner argues that he was not given an opportunity
to be heard before the Society exercised its discretion to dispose
of the dogs.
[5]
The petitioner argues that I should not be concerned about
the original seizure. He is abandoning a claim in the petition
seeking a declaration regarding the validity of that seizure. The
petitioner seeks only a declaration that “the subsequent decision
made by the respondent, the B.C. Society for the Prevention of
Cruelty to Animals to sell or otherwise dispose of the
petitioner’s animals in the manner it did was ultra vires
and void, and costs.”
[6]
With regard to the disposition, the petition particularly
alleges:
1. the Society
breached the principles of natural justice or the duty to be
procedurally fair, and particularly the Society:
a. refused or failed
to provide the Petitioner with particulars of the claims made
against him;
b. refused or failed
to advise the Petitioner of the evidence in support of the claims;
c. refused or failed
to provide the Petitioner with an opportunity to be heard;
d. refused or failed
to consider or adjudicate upon the Petitioner’s request to have
his animals returned; and
e. refused or failed
to give reasons for its decision;
2. the Society
ignored relevant evidence, namely the evidence of the registered
veterinarian engaged by the Special Constable;
3. in the
alternative, the Society exceeded its jurisdiction and fettered
its discretion when it spayed or neutered the Petitioner’s
animals, when it failed to obtain compensation for the
Petitioner’s animals and when (if it did) it applied certain
non-statutory standards in assessing the Petitioner’s kennels;
4. by reason of the
foregoing, the decision by the Society was void, unauthorized, or
otherwise invalid.
MOOTNESS
[7]
The petition does not seek any remedy other than a
declaration that the decision to dispose of the animals in the
manner in which the animals were disposed of was ultra vires
and void, or alternatively, for an order quashing the decision.
There is no claim for damages. The animals have been disposed of,
and there is no order sought that they be returned. The
petitioner is simply seeking a declaration that the Society did
not provide him with procedural fairness. I told counsel I was
concerned about dealing with this issue in what amounts to a
vacuum in the sense that there appears to be no other issue
remaining between the parties. The petitioner’s response is that
he was unjustly, or improperly treated, and that he is entitled to
a declaration to that effect. The Society says that they would
like some direction from the court as to what their obligations
are with respect to hearings in these situations, although they do
acknowledge they have an obligation of procedural fairness.
[8]
Since the original seizure, there have been additional dogs
seized as late as November 1, 2004, and counsel believe a decision
in this case may provide some guidance for the future case.
[9]
There is no assurance or way of knowing what, if anything,
would be done with the decision, if I make it, and whether it
would be used as a basis for argument in a claim for damages or
otherwise, and that gives me some concern.
[10]
I advised counsel that I would hear their submissions, but
ask them to consider the issue of whether I should proceed, or
whether the issue was moot. Petitioner’s counsel has provided an
argument on mootness filed November 10, 2004. I have not heard
from the respondent in reply. I assume that is because they wish
to have a decision rendered as well. The petitioner argues that
although a claim for damages may be an option, that it is fraught
with difficulties and additional issues, such as the measure of
those damages in a situation such as this. The petitioner says
that not only was there commercial value to the English Mastiffs,
but a personal concern about the house dog, and that damages
relating to that pet would be difficult to assess. The petitioner
argues that there are ongoing dealings between himself and the
Society, and that a damages action would simply place the parties
in an adversarial position, which would be detrimental to the
ongoing relationship. Both parties recognize the costs and
complexities of such an action.
[11]
The petitioner also recognizes that now that the animals
have been disposed of, that an application to quash the decision
to dispose of them would not be appropriate. The petitioner cites
Judicial Review of Administrative Action, de Smith, third
edition at p. 377:
The courts have a
discretion to refuse to issue certiorari to quash a decision which
has been executed in such a manner (e.g. by the payment of
money by or to persons who were not parties to the original
proceedings) that the quashing of the decision can have no direct
effect in restoring the state of affairs obtaining before it was
made.
[12]
The petitioner argues that although the issue of whether he
was afforded procedural fairness required under the Act
could be resolved as one of the issues in a damage claim, it is
preferable to do so in the form in which the petition is framed
under the Judicial Review Procedure Act. He argues
that he should be free to select the manner in which he wishes to
proceed, and the court should consider the fact that the
respondent is not opposed to such a procedure. He argues that in
the circumstances of this particular case, that this is a better
use of judicial resources than a damages trial.
[13]
The Judicial Review Procedure Act allows an
application by petition. The court may grant relief, including:
2(2)
…
(b) a declaration or
injunction, or both, in relation to the exercise, refusal to
exercise, or proposed or purported exercise, of a statutory power.
“statutory power”
means a
power or right conferred by an enactment
…
(b) to exercise a
statutory power of decision
…
(d) to do an act or
thing that would, but for that power or right, be a breach of a
legal right of any person, …
“statutory power of
decision” means a power or right conferred by an enactment to
make a decision deciding or prescribing:
(a) the legal rights,
powers, privileges, immunities, duties or liabilities of a person,
...
[14]
The Prevention of Cruelty to Animals Act,
which I will refer to later, does confer a statutory power and
statutory power of decision on the Society.
[15]
The petitioner refers to de Smith at p. 424 as follows:
But it is sometimes
neither necessary nor desirable for a legal dispute to be settled
by the threat of coercion. If one has a dispute with a friend and
a ruling by a Court of law on the relevant issues is required, it
is incongruous for one to be obliged to ask the Court to award
sanctions against him. And no matter what may be the personal
relationship of the parties, litigation in which sanctions are
sought is apt to generate an acerbity which is contrary to the
interests of the parties and of the community. Again, it is often
unseemly to proceed on the implied assumption that the Defendant
will fail to observe the law as declared by the Court unless
contingent sanctions exist. Especially is this true where the
Defendant is a body invested with public responsibilities … There
are also cases where the award of coercive relief would be unfair
to the Defendant but where the validity of the Plaintiff’s claim
against him warrants formal judicial recognition. In all these
classes of cases it is highly advantageous for the Courts to have
power to make binding declarations of the rights and duties of the
parties, without the necessity of decreeing any consequential
relief.
[16]
The petitioner argues that the matter is not really moot
simply because the dogs have been disposed of. He argues that
there is still a live issue, or a live controversy between the
petitioner and the Society, and points to the fact that fifteen
other dogs have recently been removed by the Society from the
petitioner. The petitioner further argues that even if the matter
is moot, there is a discretion to hear the issue, and that
discretion should be exercised.
[17]
The petitioner refers to the decision British
Columbia Transit v. British Columbia (Council of Human Rights),
1991, 0604 CA011439. The issue in that case was whether or not
the rules of natural justice had been breached when the
British Columbia Council of Human Rights failed to give
British Columbia Transit an opportunity to be heard
when the council decided whether to proceed with an investigation
of a complaint by an employee. The complaint dealt with the issue
of compulsory retirement at age 65. It was argued that because
the Supreme Court of Canada, in a separate case, had decided that
a contract of employment could impose a mandatory retirement age,
that the issue raised by the employee was moot. The council moved
to dismiss B.C. Transit’s appeal from a decision
that had dismissed Transit’s petition that sought an
order prohibiting the council from proceeding with its hearing
into the complaint, and setting aside the council’s decision to
proceed with the complaint. The council argued that because the
law had now been clarified, the complaint was no longer an issue
and Transit’s application under the Judicial
Review Procedure Act, complaining about the procedures
followed, was moot.
[18]
The court decided that there was still an issue between the
parties, and in any event, the court should exercise its
discretion and hear the matter on the basis of full arguments.
The court found that Transit had other employees,
and it was not unrealistic to anticipate further complaints under
the Act. The court found that Transit
did have a real and significant interest in having the court
decide whether Transit was entitled to be heard
during the investigation of a complaint. In discussing the issue
of whether there was a live controversy, and whether the court
should exercise its discretion, the court stated at p. 5,
referring to “live controversy”:
That was the expression
used by Mr. Justice Sopinka in Borowski v. Canada (Attorney
General), [1989] 1 S.C.R. 342. At page 353 he said:
The doctrine of
mootness is an aspect of a general policy or practice that a court
may decline to decide a case which raises merely a hypothetical or
abstract question. The general principle applies when the
decision of the court will not have the effect of resolving some
controversy which affects or may affect the rights of the
parties. If the decision of the court will have no practical
effect on such rights, the court will decline to decide the case.
This essential ingredient must be present not only when the action
or proceeding is commenced but at the time when the court is
called upon to reach a decision. Accordingly if, subsequent to
the initiation of the action or proceeding, events occur which
affect the relationship of the parties so that no present live
controversy exists which affects the rights of the parties, the
case is said to be moot. The general policy or practice is
enforced in moot cases unless the court exercises its discretion
to depart from its policy or practice. The relevant factors
relation to the exercise of the court’s discretion are discussed
hereinafter.
Mr. Justice
Lambert in giving judgment for the Court in Cowling v. Brown
(1990), 48 B.C.L.R. (2d) 63, referred to that passage and said at
pages 66 and 67:
Even if a matter
is moot within that general description, there is a power in the
court to exercise its discretion in favour of hearing and deciding
the appeal. The general rule is that if the matter is moot the
court should not deal with it. The exceptions arise in special
cases. An example is the case where rights arise and are
terminated by the effluxion of time in a brief period, and if the
court does not agree to hear a moot case in those circumstances
similar rights in the future will never be adjudicated upon.
In the Borowski
case Mr. Justice Sopinka talks about the basis for the exercise of
the discretion to hear an appeal that is moot. He talks about
three points that affect that decision of policy and practice.
The first point is that
the adversary system is the basis on which the courts’ confidence
in resolving legal disputes rests, and if the matter is not being
vigorously contested, the court does not have the benefit of the
submissions from counsel which permit sound decision-making. The
second point referred to Mr. Justice Sopinka is concern for
judicial economy. There are continuing pressures at all levels of
court to decide real issues which have important effects on
parties who could be very seriously affected by the decision. For
that reason the courts should not allow themselves the luxury of
pursuing intriguing questions which have no real effects.
The third point
referred to by Mr. Justice Sopinka is properly called judicial
restraint. It takes heed of the need for the courts to have a
sensible understanding of the relationship between the functions
that are properly to be exercised by the courts and the functions
that must be exercised by the legislative branch in Parliament or
by the administrative branch of government, and for the court to
be wise in making sure that the proper balance prevails.
[19]
I am satisfied that there still remains a live issue
between the petitioner and the BCSPCA regarding the type of
hearing that the petitioner would be entitled to before animals
seized are disposed of. The petitioner at present continues to
try to breed and care for animals, and additional animals have
been removed from his control. I am satisfied that even if there
were not a live issue, that I should exercise my discretion to
grant a decision in this case. I consider the position of the
petitioner and the respondent in seeking such a decision. I also
consider that it is a matter which arises on a regular basis.
[20]
The relevant legislation is the Prevention of Cruelty
to Animals Act, R.S.B.C. 1996, c.372. Section 3 provides
for the continuation of the B.C. Society of the Prevention of
Cruelty to Animals with perpetual succession and a corporate
seal. The Society is given certain powers under the Act,
including the powers under s. 11 to take animals into custody, and
s. 18 to dispose of animals. Section 20 deals with the costs and
proceeds of disposition. They make the owner responsible for the
costs and can require those costs to be paid before the animals
are returned to an owner. As well, the Society may pay the costs
of seizure, disposition or care etc. from any proceeds they
receive when the animals are disposed of. Where there are excess
proceeds, the owner may, within six months of the animal being
taken, claim the balance from the Society.
[21]
Section 26 allows the lieutenant governor in council to
make regulations requiring the Society to make bylaws with respect
to the policies and operational procedures of the Society for
administering the enforcement provisions of this Act (s.
26(2)(a)). I am told that no such regulation has been passed, and
there are no bylaws that deal with the procedures that should be
followed when the Society proposes to dispose of animals pursuant
to s. 18.
[22]
It would be useful to the Society and the people they deal
with if such regulations and bylaws were passed. This would
provide certainty to all parties involved, and assist the Society
in carrying out its authority under the Act and
accomplishing the purposes of the Act, the relieving
of distress in animals.
[23]
Both counsel agree that in circumstances where a statute
authorizes the taking of a person’s property, in this case
animals, and there is no provision for a form of hearing, that a
person is entitled to be heard. (Painter v. Liverpool Gas
Company (1836), 3 AD. & E. 433. Cooper v.The
Wandsworth Board of Works (1963), 14 C.B. (N.S.) 180, 143
E.R. 414).
[24]
Counsel agree that where the process has not been
determined by the statute, that the Society then should determine
its own procedure, but there is still a requirement of procedural
fairness. The extent of the procedural obligations may be
determined by the nature of the decision, the relationship between
the decision maker and the person asserting a claim to procedural
fairness and the affect of the decision on that person’s rights.
Knight v. Indian Head School Division No. 19, [1990]
1 S.C.R. 653. The obligation may also be affected by the finality
of the decision. In this case there is no right of appeal from a
decision of the Society. The petitioner also argues that where,
as in this case, the Society is involved in the investigation, as
well as the decision making role, that the requirements for
procedural fairness are even greater (Irvine v. Canada
(Restrictive Practices Commission) 1987 1 S.C.R. 181).
[25]
Counsel both agree that the “hearing” may take different
forms. The form of hearing could range from a simple exchange of
correspondence, to a right to make submissions, and to a complete
oral hearing with the ability to call witnesses and to examine or
cross-examine. The type of hearing that meets the requirements of
natural justice varies from case to case.
[26]
Some of the factors that might be considered in determining
the nature of the hearing under this Act would include the
following:
1. Prior dealings
between the Society and the person from whom the animals are
seized;
2. Communications
between the Society and the person from whom the animals are
seized;
3. Responses to
seizures and communications, and the ability or willingness of the
individual to respond or remedy the concerns;
4. The circumstances
leading to the seizure itself;
5. The number and
value of the animal seized;
6. The type of
animals, whether they are livestock or commercial property, or
whether they are personal pets;
7. The cost of
retaining the animals, and the need to dispose of them quickly;
8. The ability to
dispose of them in a reasonable time.
[27]
The respondents argue that despite the fact there is an
obligation for procedural fairness, that the petitioner had any
hearing he was entitled to, because throughout the investigation
starting in January of 2004, he was aware of the concerns of the
Society.
[28]
The circumstances and the background of this case must be
looked at to determine what form of hearing was required. The
respondent, Kokoska, has filed an affidavit #1, sworn October 22,
2004, in which he relates his dealings with the petitioner. He
has been an employee of the Society for fourteen years as an
animal cruelty investigator, and is a special provincial
constable.
[29]
Mr. Kokoska attended at the petitioner’s premises on
January 5, 2004, and explained that he was investigating
complaints received from the public about several cats, and
approximately fifty English Mastiffs on the property. Mr. Kokoska
explained to the petitioner about the complaints and asked if he
could see the dogs and view the premises. The petitioner
consented. Mr. Kokoska viewed sixteen kennels in a building
referred to as the first out building. He noted an overpowering
smell of urine, and the fact that there were no outside runs
available. He also viewed a second out building which was
smaller. He saw a total of forty English Mastiffs; several that
appeared to be thin and emaciated. The petitioner became agitated
when Mr. Kokoska expressed his concerns. The petitioner confirmed
there were seven or eight dogs and several cats in the house, but
due to his wife’s illness, did not wish Mr. Kokoska to examine the
residence. Mr. Kokoska told the petitioner that improvements had
to be made to the ventilation of the out buildings and that they
required cleaning.
[30]
The Society again received complaints from the public on
June 8, 2004 of starving dogs and filthy kennels, and cats in the
house with diarrhoea. Mr. Kokoska attended the premises on June
23, 2004, but no one was home. He left a note, but also noticed a
“rank stench of feces in the air.” Mr. Kokoska again attended on
June 28, 2004, by arrangement, but due to an emergency at his
place of employment, the petitioner could not be there. Mr.
Kokoska noticed three dogs in the yard, and two penned in the
area. One female had predominant ribs and the other tumours on
her body.
[31]
Mr. Kokoska attended, by arrangement, on July 5, 2004. He
provided the petitioner with a “Code of Practice for Canadian
Kennel Operations” published by the Canadian Veterinarian Medical
Association, and showed the petitioner a copy of an inspection
sheet used by the Society with respect to kennels. Photographs
were taken and are attached to Mr. Kokoska’s affidavit. Mr.
Kokoska’s evidence is that the petitioner acknowledged the kennels
were in need of repair, but complained that the Society had
earlier offered to help him, but had failed to do so. Mr. Kokoska
made suggestions to the petitioner as to where he may obtain free
materials for repairs to the kennels.
[32]
Mr. Kokoska reported that the first and second kennels had
fresh water and the floors were clean of feces, but the walls were
filthy. A third out building held eight Mastiff dogs, one with an
open wound. The petitioner said he had not noticed the wound
before, and immediately treated it with a veterinary spray.
[33]
Two of the dogs in the first building had “cherry eye”
condition that causes discomfort to the animals and requires
veterinarian attention. Another dog appeared to be very thin with
ribs showing.
[34]
Mr. Kokoska discussed his concerns with the petitioner, and
discussed the need for veterinarian attention. He issued an order
to the petitioner, requiring that five dogs receive veterinarian
examination and treatment within ten days, and that a vet attend
the premises to examine the animals located on the premises. The
petitioner became upset, asked Mr. Kokoska to leave and said he
would no longer deal with him.
[35]
Mr. Kokoska met with the petitioner on July 15, 2004. The
petitioner told Mr. Kokoska he was having trouble finding a
veterinarian who would be prepared to attend. He also indicated
he was concerned that the dogs would be at risk if they were put
under anaesthetic to deal with the “cherry eye”.
[36]
The petitioner said he wanted to reduce the number of dogs
to 20, and was placing them in homes as fast as he could. He
indicated he had done nothing else, nor did he intend to do
anything else with respect to the concerns Mr. Kokoska had
discussed with him about the condition of the dogs. Mr. Kokoska
advised him he could surrender the dogs to the Society if he
wished at no cost. The petitioner indicated that he would lose
his credibility as a breeder, and would never surrender them.
[37]
Mr. Kokoska advised the petitioner that he would have to
have a vet attend, and if he did not do so, then the Society would
have no choice but to attend with a vet. The petitioner agreed to
have a vet attend as soon as possible. It appeared the petitioner
was unwilling or unable to obtain the assistance of a vet, and Mr.
Kokoska was concerned that the animals were in distress.
[38]
Ultimately, a search warrant was obtained under the
Act. The warrant was executed on July 27, 2004. A
veterinarian attended as well as others.
[39]
Again, Mr. Kokoska found that there was an overpowering
smell of urine in the residence, and the floors were extremely
dirty. The crates on the residence in which some of the dogs were
kept and were dirty as well, and several cats were in bad
condition. Photographs were again taken. There were thirteen
dogs and several cats in the residence. Seven of the dogs had ear
infections, but the dogs were in generally good body condition.
[40]
The second out building was in poor condition, with feces
being evident on the floor and walls. The first out building
reeked of urine. The kennels had holes in the floors and walls,
and some of them had been chewed apart, and there were nails
protruding in places. The veterinarian considered the conditions
to be unhygienic, and the dogs had hard, wet surfaces to lie on.
There were a total of forty-eight dogs, and the vet was of the
opinion that the number of dogs and the housing conditions would
put them in distress. Only nine of the Mastiffs, the Pug and five
cats were taken by the Society. The petitioner complained that he
had not been given enough time to repair the kennels.
[41]
Mr. Kokoska said he would follow up with the petitioner to
see that the standard of care for the remaining animals was
acceptable, and the petitioner advised that communication should
be through his lawyer.
[42]
The large number of animals and their size created problems
for the Society in providing for the animals. On July 30, 2004 a
notice of seizure and notice of disposition was served by
registered mail on the petitioner. The notices were pursuant to
s. 11 and s. 19 of the Act. The notice indicated
that the Society intended to dispose of the animals within 14 days
after mailing the notice.
[43]
The petitioner did write to the Society on July 29, 2004
objecting to the seizure, and stating that the animals were not to
be sold or altered in any way until the court proceedings had been
concluded. He was not seeking to be heard by the Society at that
time.
[44]
In response to the notice of disposition, the petitioner
wrote a letter on August 9, 2004 asking for an extension of time
to retrofit his kennels to the standards set out in the Canadian
Standards of Kennel Operations.
[45]
The petitioner’s counsel wrote to the Society on August 11,
2004 asking for the return of the animals, and asking the Society
what its intentions were, and seeking copies of all particulars,
including a copy of the warrant. The Society confirmed by letter
dated August 12, 2004 that its intention was to dispose of the
animals.
[46]
On September 1, 2004, petitioner’s counsel again faxed a
letter to the Society opposing the disposition of the animals.
The Society, through its counsel, responded on the same date. The
letter of September 1, 2004 from counsel to the Society, referred
to the rules of natural justice, including an opportunity to know
the claim made and the evidence in support of that claim and an
opportunity to be heard. Among other things, the letter demanded:
·
the
Society advise counsel of the justification for the seizure of the
animals, and the evidence in support of that;
·
an
opportunity for the petitioner to be heard, including a full
hearing with witnesses to determine if the animals should be
returned or disposed of.
[47]
A letter from the Society’s counsel in response confirms
that the animals were taken pursuant to a search warrant and the
authority of the Act, because they were in
distress. The letter confirms that the notice of disposition had
been mailed, and that the Society was proceeding with the
disposition of the animals.
[48]
The letter stated that the petitioner had an opportunity to
know the claims and evidence against him, because of the
information to obtain a warrant was on file in the Kamloops Court
Registry of the Provincial Court and could be viewed there.
[49]
Further correspondence was exchanged between counsel on
September 2, 2004. On September 9, 2004, the Society’s counsel
advised the petitioner’s counsel that the dogs had been disposed
of, and two of the cats had be euthanized because they were in
critical distress.
[50]
It cannot be reasonably said that the petitioner was not
aware of the concerns of the Society, or the reasons for the
animals being removed from his care. The photographs of the state
of the premise at the time of inspections and the apprehension
clearly demonstrate that the petitioner was unable to adequately
care for the animals.
[51]
It would appear that the Society had concluded the
petitioner was unwilling or simply unable to remedy the concerns
that had been raised. The Society did receive correspondence from
the petitioner and his counsel, some of which was confrontational,
some of which offered to remedy the concerns about the kennels and
the care of the animals to the extent he was able to end a given
time.
[52]
The petitioner’s and counsel’s letters indicate that the
petitioner believed that the vet in attendance had not authorized
the taking of the animals. The affidavit of the veterinarian
sworn October 22, 2004 makes it clear that the veterinarian’s
position that it was not his decision as to whether the animals
should be apprehended and, therefore, he does not authorize the
apprehension of animals. However, it is also clear from his
affidavit and his description of the premises, that he recommended
certain animals be removed “on the basis that the conditions were
such that those animals would inevitably be deprived of an
acceptable minimal standard of care and at least some of these
animals were injured, sick, in pain or suffering.” The
veterinarian’s opinion that the removal was justified was “based
on the minimal space allotment for those dogs, and the poor
housing and animal husbandry afforded to these animals.” The vet
also recommended the removal of the cats and the Pug. The Pug had
chronic ear infection and untreated bilateral ear mite infection.
[53]
The vet recommend to the petitioner that he seek immediate
veterinarian advice and treatment for the dogs which were not
taken in to custody, and advised him that the cherry eye condition
of at least some of the animals could be treated surgically. The
vet concluded that the animals showed indicia of “long-term
neglect.”
[54]
It is unfortunate that the Society did not correct the
petitioner’s misapprehension about the opinion of the veterinarian
that was raised by the petitioner’s counsel.
[55]
There was a history of dealing and communication between
the Society and the petitioner. The petitioner’s responses to the
concerns raised by the Society had clearly been inadequate up to
the time the animals were seized.
[56]
A large number of animals were seized. The value is
difficult to determine. The petitioner told Mr. Kokoska he sells
the animals for $1,500.00 for a home quality animal, and $2,500.00
for a show quality animal. Obviously, he was having trouble
disposing of the animals himself. I agree with the Society that
it does not have a duty to obtain the “best price” for the
animals. It is not a commercial organization and it cannot
operate as a pet store. It must act reasonably in the exercise of
its discretion of disposing of the animals and the way in which it
does so (Weir v. Ontario Society for the Prevention of
Cruelty to Animals, [1999] O.J. No. 3516 (Ont. Ct. J.).
[57]
The respondent’s decision or policy to require that the
animals be neutered when they are adopted out is not an
unreasonable fettering of their discretion when they dispose of
animals. They are not required to obtain the best commercial
value or price for animals. In fact, they have difficulty
disposing of such a large number of animals at any one time, the
same way that the petitioner himself did. It is consistent with
the purposes of the Act to relieve the suffering of
animals, to try to prevent the over-population of animals. One
way to do this is by having the animals which they adopt out
neutered.
[58]
These are large animals which require a great deal of food
and room. The petitioner was having difficulty in providing for
them, and they created stress on the Society’s resources as well.
The Society could not keep the animals indefinitely.
[59]
The Society had already arranged for the disposition of the
Mastiffs to two separate rescue societies by September 1, 2004.
The Society informed the petitioner of this on September 9, 2004,
but the evidence does not suggest that there was any problem in
delaying the disposition for a short period of time to receive the
petitioner’s position.
[60]
Despite the number and potential value of the animals in
this case, I find that an oral hearing was not necessary.
However, I do find that the Society should have received the
written position of the petitioner and considered it before
disposing of the animals. It was not necessary for the Society to
spell out its concerns or evidence in any more detail than had
already been done, nor was it necessary to give the petitioner
more than a brief period of time to provide his position, and his
plan to remedy the concerns of the Society. He already had one
month to do so before the animals were disposed of.
[61]
I do not wish to be critical of the Society and consider
the difficult situation they were faced with. It is
understandable that the Society would have concluded that the
petitioner, despite his best intentions, would simply be unable to
remedy the problems. He had not done so from January to July, and
there was no reason to expect that he would be able to on short
notice. Had the Society given the petitioner a fuller hearing,
the results may have been no different.
[62]
I accept that the petitioner was concerned about his
animals, but it is apparent that he was simply incapable of
providing them with the minimal care they required. This
inability, whether it was physical, financial or both, is apparent
from the affidavits of Mr. Kokoska, the veterinarian, the other
constables who attended at the residence and the photographs of
the kennels.
[63]
If the animals had been disposed of before the September 1,
2004 letter from petitioner’s counsel, or if the evidence
suggested it was not possible for the Society to delay the
disposition one or two days after receipt of the letter, I would
have found that the petitioner had not taken the opportunity he
had to present his position to the Society. However, when the
Society received the letter of September 1, it should have given
the petitioner a short period of time to explain how he proposed
to properly care for the animals and to demonstrate that he was
capable of doing so.
[64]
The petitioner is entitled to a declaration that he did not
receive the type of hearing that he should have before the Society
disposed of the animals. However, he is not entitled to a
declaration that the decision was void, or any order setting aside
that decision in that the animals have already been disposed of
and cannot be returned.
[65]
I have some sympathy with the respondents’ position. Based
on what was communicated to the petitioner and the physical
condition of the kennels, and the animals that are obvious in the
photographs attached to the affidavit, it should have been quite
obvious to the petitioner what the concerns were. Despite the
numerous attempts by the Society’s officers to have these problems
remedied, it would appear the petitioner was simply unable,
whatever his intentions may have been, to deal with the problems.
This could have been through lack of money or simply lack of
ability. That being the case, the respondents may have believed
there was no need for any further hearing. They may have believed
the petitioner must have known what the problems were and had been
given opportunities to address them and simply been unable to.
They may have believed that there was nothing in any of his
communications that indicated any change in his ability to do so,
despite his professed intent to do so.
[66]
The petitioner’s position in response would be that may
apply to the original seizure of the animals, but subsequently, he
and his counsel both wrote letters objecting to the disposition of
the animals, and requesting particulars of the complaints. He
also argues that his second letter to the Society, that he wrote
on his own, indicates his willingness to comply with whatever
requirements they had to improve his kennels, and seeks
particulars. He would also argue that he did take some steps to
improve the kennels and was prepared to take others.
[67]
The matter was further complicated by the fact that the
petitioner did not make it clear that he wished to have a hearing
of some sort until his counsel’s letter of September 1, 2004.
[68]
The petitioner has obtained the declaration he sought, but
only after abandoning the other claims he made in the petition
dealing with the initial taking of the animals. It is clear,
based on the evidence before me, that the petitioner had little,
if any, chance of success on the issue of the taking of the
animals. In addition, the petitioner did not really seek any form
of hearing until the date the animals were about to be disposed
of. I have also concluded that the petitioner was not entitled to
the type of hearing which he was claiming, or one that included
the opportunity to examine and cross-examine witnesses.
[69]
In the circumstances, I find that the petitioner has only
been partially successful in this application. Therefore, I find
that each party should bear their own costs.
“R.E. Powers, J.”
The Honourable Mr. Justice R.E. Powers
November 26, 2004 –
Revised Judgment
Corrigendum issued
advising that on page 8, paragraph 15, it should read “binding”
and not “binging”.
On page 23, paragraph
49, it should read “euthanized” and not “euphonized”.
