C A N A D A

PROVINCE OF QUEBEC
S U P E R I O R C O U R T

DISTRICT OF MONTREAL

NO: 500-17-035849-077
TEJA’S ANIMAL REFUGE, a duly incorporated legal person maintaining a principal establishment at 21511 McCormick Road, in the Town of Glen Robertson, Province of Ontario (K0B 1H0)

Plaintiff
v.

THE ATTORNEY GENERAL OF QUEBEC, on behalf of the Minister of Agriculture, Fisheries and Food, maintaining an establishment at 1 Notre-Dame Street East, suite 4.100, in the City and District of Montreal, Province of Quebec (H2Y 1B6)

-and-

ASSOCIATION NATIONALE D’INTER-VENTION POUR LE MIEUX-ÊTRE DES ANIMAUX (ANIMA-QUÉBEC) INC., a duly incorporated legal person maintaining a principal establishment at 1965 De Bergerville Street, Quebec, Province of Quebec (G1S 1J7)

Defendants
-and-

9001-3657 QUÉBEC INC., a duly incorporated legal person conducting business under the firm names and styles Centre d’élevage Lamarche & Pinard and Chenil et École Lamarche & Pinard, maintaining a principal establishment at 8000 Broadway Avenue North, Montreal-East, Province of Quebec (H1B 5B6)

MOTION TO INSTITUTE PROCEEDINGS
(for Declaratory Relief and Permanent Injunction)
____________________________________________

IN SUPPORT OF THESE PROCEEDINGS, THE PLAINTIFF SUBMITS THAT:

Background

The Plaintiff, Teja’s Animal Refuge (“Teja”), was incorporated on January 21, 2004 as a Federal not-for-profit charity. Its primary activity consists of rescuing, rehabilitating and adopting neglected, abused and unwanted animals, including specifically dogs and cats;
As an animal rescue organization, Teja is genuinely concerned with the health and well-being of animals in general, dogs and cats in particular;
Although its principal establishment is located in Ontario, Teja is active and routinely conducts animal rescue operations in the Province of Quebec;
The Mise en cause, 9001-3657 Québec Inc., owns and operates a dog breeding facility in Ste-Justine de Newton, Quebec, under the firm name and style Centre d’élevage Lamarche & Pinard (hereinafter referred to as “L&P”);
L&P’s facility is located eighteen (18) kilometers from Teja’s establishment in Glen Robertson, a small farming town situated on the Ontario side of the border with the Province of Quebec;
Over the last two and a half (2½) years, Teja’s Executive Director, Nicole Joncas, has received numerous complaints and expressions of concern regarding the living conditions and treatment of animals at L&P’s breeding facility;
In the context of investigating these complaints and expressions of concern, Teja has documented a series of violations of the animal health protection standards set out in the Animal Health Protection Act, R.S.Q. c. P-42 (hereinafter referred to interchangeably as the “AHPA” or the “Act”);
The Defendant, the Minister of Agriculture, Fisheries and Food (“MAPAQ”) is responsible for administering the provisions of the AHPA. Specifically, section 1 provides that:
“1. The Minister of Agriculture, Fisheries and Food shall have charge of the carrying out of this Act. The duties of the Minister include ensuring that an appropriate level of animal health protection is maintained.”

The Defendant, Association nationale d’intervention pour le mieux-être des animaux (Anima-Québec) Inc., (« Anima-Québec ») was established in May 2002 under Part III of the Quebec Companies Act, with the mission of ensuring the safety and welfare of animals and informing the public in that connection;
At the end of December 2004, MAPAQ entered into an agreement with Anima-Québec to establish an inspection program for the purposes of enforcing Division IV.1.1 of the AHPA concerning the safety and welfare of animals, which are currently defined by regulation to include only dogs and cats;
Accordingly, Anima-Québec is the body empowered by MAPAQ to enforce the standards set out in the AHPA which, over the past two and a half (2½) years, have regularly been violated by L&P;
By way of these proceedings, the Plaintiff seeks a declaration of this Honourable Court to the effect that MAPAQ has failed to fulfill its statutory public duty under the terms of the AHPA to ensure the safety and welfare of animals included within the scope of its protection;
In addition, the Plaintiff seeks a declaration to the effect that Anima-Québec has failed to fulfill its statutory public duty to enforce the relevant provisions of the AHPA or, alternatively, that Anima-Québec has refused to exercise its discretion to enforce the relevant provisions of the AHPA against offenders in general, and against L&P in particular, which constitutes an unreasonable exercise of a delegated discretionary power;
Finally, the Plaintiff seeks a permanent injunction ordering the Defendants to diligently enforce the animal safety and welfare provisions of the AHPA against offenders in general, and against L&P in particular;
Legislative History and Application of the AHPA

While the AHPA was adopted by the National Assembly of Quebec in 1993, Division IV.1.1 of the Act which deals with the safety and welfare of animals did not come into force until almost ten (10) years later, on February 11, 2002;
The key provision of Division IV.1.1 is section 55.9.2 which provides that:
“55.9.2 The owner or custodian of an animal shall ensure that the safety and welfare of the animal is not jeopardized. The safety and welfare of an animal is jeopardized where:
1) the animal does not have access to drinking water or food in quantities and of quality in keeping with the biological requirements of its species;
2) the animal is not kept in suitable, salubrious living conditions or is not properly transported in an appropriate vehicle;
3) the animal is wounded or sick and does not receive the health care required by its state;
4) the animal is subject to abuse or ill-treatment that may affect its health;
5) subject to paragraphs 1 to 4, the animal is kept or transported in contravention of the regulatory standards established pursuant to section 55.9.14.1.”

Dog breeding facilities have an additional obligation pursuant to section 55.9.3 to ensure that the premises in which animals are kept are clean and that the facilities are not organized or used in any way that may affect the safety and welfare of the animals;
Contraventions of either sections 55.9.2 or 55.9.3 by breeding facilities are punishable by way of fine(s) under section 55.43.1;
In cases where an inspector has reasonable grounds to believe that the safety and welfare of an animal is in jeopardy or immediate danger, the Act further provides for the seizure and confiscation of the animal, in addition to the issuance of an order to cease all breeding activities (sections 55.9.5 to 55.9.7);
In this regard, section 55.9.4 of the Act specifies that the Minister shall designate inspectors responsible for the enforcement of the provisions of Division IV.1.1, and may further enter into an agreement with any person to establish a program of inspection in respect of the application thereof;
Pursuant to section 55.9.14.1, the Minister may fix by regulation standards for the custody and transportation of animals. To date, no regulations have been enacted setting out more detailed specifications or standards regarding the foregoing obligations;
Thus, when Anima-Québec was given the mandate to enforce the safety and welfare provisions of the AHPA pursuant to section 55.9.4, there existed and there still exists no government regulations establishing standards or guidelines for interpreting and enforcing the health and safety provisions of the Act;
For its part, Anima-Québec has prepared and published “Guidelines” regarding the safety and welfare of animals, but has no formal set of standards which it applies in the fulfillment of its mandate received from MAPAQ. A copy of Anima-Québec’s publication entitled Guide des pratiques généralement reconnues is produced in support hereof as Exhibit P-1;
In terms of funding, Anima-Québec receives a mere $150,000.00 a year from the Government of Quebec and raises the balance of its funding from donations, although solicitations appear to be restricted to corporate entities;
As far as manpower is concerned, Anima-Québec currently employs only seven (7) people, four (4) of whom are responsible for inspections in the field throughout the province;

Facts specific to L&P

Over the past two and a half (2½) years, Teja has documented specific and repeated violations of the standards set out in the AHPA and summarized at paragraphs 16 and 17 herein, the whole as more fully appears from the photographic and video evidence produced in support hereof in a bundle as Exhibit P-2;
Briefly stated, L&P have breached and are in constant violation of the Act to the extent that, inter alia:
its dog breeding facility is not ventilated, improperly insulated and insufficiently heated during winter months, to such an extent that the temperature inside the facility often drops to 30 degrees below freezing;
the facility is often chronically overcrowded, housing as many as 300 and even 400 dogs at any given time;
dogs bred in the facility are caged in enclosures of insufficient size for any species and are rarely if ever given access to exercise facilities. Some dogs bred at the facility have never been outdoors;
dogs are routinely left in cages with other sick, dead or dying animals;
the facility in general and the dogs’ enclosures in particular are filthy, rarely cleaned and are often infiltrated with putrid sewage water;
dogs are not given proper if any veterinary attention, and no records of any kind are kept regarding the health and general welfare of the animals;
dogs often do not have access to clean drinking water and do not have appropriate quantities of food;
the dogs are often mistreated and sometimes even beaten to death by L&P attendants;
During the period of time in question, Teja’s Nicole Joncas has regularly communicated with authorities, including representatives of MAPAQ and Anima-Québec, in an effort to have the provisions of the Act enforced against L&P but to no avail;
In addition, as early as May 2004 and thereafter, Mr. Gilles Potvin, a former L&P employee, filed numerous complaints with authorities, including Anima-Québec, describing the cruel practices and unacceptable living conditions prevailing at L&P’s breeding facility;
There being no meaningful response to any of his complaints, including ones made to Anima-Québec, Mr. Potvin filed a complaint with the Sûreté du Québec, the whole as appears from a copy of his statement dated March 24, 2005 produced in support hereof as Exhibit P-3 and which is to avail as if recited herein at length;
Seeing no changes in the practices of L&P, Mr. Potvin and Teja’s Nicole Joncas together filed an official complaint with Anima-Québec on April 10, 2005, to which they received no response;
On May 2, 2005, photographs documenting the deplorable condition of dogs bred at L&P’s facility were sent to Anima-Québec’s Vice-President, Me Martine Lachance, in support of the numerous prior complaints. Copies of these photos are already produced as part of Exhibit P-2;
On May 18, 2005, Teja once again contacted Anima-Québec but again received no response;
During the period between May 2005 and December 2006, Teja accumulated additional evidence regarding the unacceptable living conditions prevailing at L&P’s breeding facility, the most telling of which include veterinarian reports concerning dogs bred at L&P’s facility, copies of which are produced in support hereof in a bundle as Exhibit P-4;
In addition, Gilles Potvin and Andrew Plumbly of the public interest group Global Action Network obtained video footage of the conditions inside L&P’s facility which confirmed that the conditions in the mill had not improved whatsoever over this time period. A copy of the video footage in question obtained on or about August 8, 2005 is produced in support hereof as Exhibit P-5;
Anima-Québec’s (in)action

On June 8, 2006, almost fifteen (15) months since a first complaint was filed with Anima-Québec, Anima-Québec inspectors went to visit L&P’s facility, the whole as more fully appears from the inspection report produced in support hereof as Exhibit P-6;
On June 27, 2006, Anima-Québec sent a letter to L&P summarizing the inspection and providing “recommendations” as to what should be done to bring the facility up to standard. A copy of Anima-Québec’s letter to L&P is produced in support hereof as Exhibit P-7;
During the following weeks, further visits to L&P’s facility and veterinary examinations of dogs bred at the facility confirmed to the Plaintiff that despite the recommendation letter from Anima-Québec, conditions at L&P’s facility remained unacceptable and in blatant violation of the Act;
Plaintiff refers in this regard to the examination notes of Dr. Lavallée dated July 3, 2006 already produced as part of Exhibit P-4, together with video footage of Dr. Lavallée’s examination of dogs taken from the facility on July 3, 2006, produced in support hereof as Exhibit P-8;
On July 12, 2006, Anima-Québec inspectors returned to visit and inspect L&P’s facility, the whole as more fully appears from the inspection report produced in support hereof as Exhibit P-9;
Whereas on June 8, 2006, Anima-Québec inspectors noted the presence of approximately 250 dogs at L&P’s facility, one month later there were reportedly only 175 dogs at the mill;
A further “recommendation” letter was sent to L&P on July 25, 2006, the whole as more fully appears from Anima-Québec’s letter produced in support hereof as Exhibit P-10;
Despite L&P’s obvious efforts to cosmetically appease Anima-Québec’s inspectors, conditions at the breeding facility persisted to be not only dramatically unsafe for the dogs bred and housed at the mill, but also in blatant contravention of the standards set out in the AHPA;
Briefly stated, the Plaintiff’s ongoing investigation into the practices and living conditions prevailing at L&P’s dog breeding facility confirm that L&P was and is in blatant and repeated, if not serial violation of the animal safety and welfare provisions of the AHPA;
In late February 2007, news reports suggested that L&P and its President, Pietro Ruscito, had been charged with contraventions of the Act, although Plaintiff is unable to confirm whether this is in fact the case;
To Plaintiff’s knowledge, dogs bred and housed at L&P’s facility have never been seized or confiscated (i.e. rescued) by Anima-Québec inspectors and L&P has never been ordered to cease breeding activities;
In summary, it took the Defendants almost a full two (2) years from the moment they were advised of the blatantly illegal, unsafe and in fact cruel practices prevailing at L&P’s breeding facility before seeking to apply and enforce for the first time the animal safety and welfare provisions of the AHPA against L&P;
Based on the type and degree of violations of the Act, Anima-Québec’s purported enforcement has been untimely, meaningless and grossly inadequate, having consideration in particular to the vast powers of enforcement provided by the AHPA;
Not to mention the intense cruelty and suffering endured by the dogs bred at L&P’s facility during this period, the Defendants’ failure to meaningfully and in a timely fashion prosecute violations of the AHPA and to ensure that “an appropriate level of animal health protection is maintained”, has caused and will continue to cause harm and prejudice to the Plaintiff and other individuals and organizations dedicated to animal welfare;

Conclusion

It appears clearly from the foregoing that the Defendants have together failed to fulfill their respective statutory public duties under the terms of the AHPA to ensure the safety and welfare of animals included within the scope of the Act’s protection, notably the dogs bred and held at L&P’s breeding facility in Ste-Justine-de-Newton, Québec;
There being over two thousand (2,000) large scale breeding facilities known to be operating in Quebec, the Plaintiff can only conclude that the Defendants’ failure is not limited to the case of L&P’s facility, but reflects an unwillingness or inability to apply and enforce the provisions of the AHPA throughout the Province of Quebec;
The Plaintiff has a genuine interest within the meaning of Article 453 of the Code of Civil Procedure to determine the extent of the obligations of the Defendants pursuant to the AHPA in that, inter alia:
Teja routinely conducts animal rescue operations in the Province of Quebec and has in fact rescued and adopted a number of dogs known to have been bred and kept at L&P’s facility;
These rescue operations are costly to Teja, to the extent that the animals rescued require care and attention, food and shelter and often significant veterinary intervention and drug expense;
As mentioned in the introductory paragraphs of this Motion, as an animal rescue organization, Teja is genuinely concerned with the health and well-being of animals in general, dogs and cats in particular;
This Motion is well-founded in fact and in law;
WHEREFORE, MAY IT PLEASE THIS HONOURABLE COURT TO:
GRANT Plaintiff’s Motion to Institute Proceedings;
DECLARE that the Defendant, the Minister of Agriculture, Fisheries and Food for the Province of Quebec (“MAPAQ”), has failed to fulfill his statutory public duty under the terms of the Animal Health Protection Act, R.S.Q. c. P-42 (the “AHPA”) to ensure that an appropriate level of animal health protection is maintained in the Province of Quebec;
DECLARE that the Defendant, Association nationale d’intervention pour le mieux être des animaux, (Anima-Québec) Inc. (“Anima-Québec”) , has failed to fulfill its statutory public duty to enforce the provisions of Division IV.1.1 of the AHPA;
OR IN THE ALTERNATIVE,
DECLARE that Anima-Québec has refused to exercise its discretion to enforce the relevant provisions of the AHPA against offenders in general, and against the Mise en cause, 9001-3657 Québec Inc., in particular, which constitutes an unreasonable exercise of a delegated discretionary power;
AND BY WAY OF PERMANENT INJUNCTION:
ORDER the Defendants, MAPAQ and Anima-Québec, to diligently enforce the animal safety and welfare provisions of the AHPA to the full extent provided by the Act against offenders in general;
ORDER the Defendants, MAPAQ and Anima-Québec, to diligently enforce the animal safety and welfare provisions of the AHPA to the full extent provided by the Act as against the Mise en cause, 9001-3657 Québec Inc., and in particular to:

Seize and confiscate all animals held at the breeding facility of the Mise en cause situated in Ste-Justine-de-Newton, Quebec;
Order the Mise en cause to cease all breeding activities taking place at its establishment in Ste-Justine-de-Newton, Quebec, pursuant to section 55.9.6 of the AHPA;
RESERVE all other rights and recourses of the Plaintiff herein;
THE WHOLE with costs, including the costs of expertise as may be required.

MONTREAL, March 21, 2007

(S) Irving Mitchell Kalichman, l.l.p.

IRVING MITCHELL KALICHMAN, l.l.p.
Attorneys for Plaintiff
Teja’s Animal Refuge

Regulation respecting the animal species or categories designated under Division IV.1.1 of the Animal Health Protection Act (R.R.Q. c. P-42, r.1.01)